17 Wend. 550 | N.Y. Sup. Ct. | 1837
By the Court,
The first section of the act of 1830 provides that every mechanic, workman, or other person doing any work towards the erection of any building in the city of New-York, erected under a contract in writing between the owner and builder, or other person, whether such work be peifformed as jorneyman, laborer, cartman, sub-contractor or otherwise, and whose demand has not been paid, may deliver to the owner an attested account of the amount and value of the work thus performed remaining unpaid, and thereupon such owner shall retain, out of his subsequent payment to the contractor, the amount of such work, for the benefit of the person performing the same. By § 2, whenever any account of labor performed on the building shall be placed in the hands of the owner, or his agent, it shall be his duty to furnish his contractor with a copy, in order, if there be any disagreement between such contractor and his creditors, they may, by amicable adjustment or arbitration, ascertain the sum due; and if the contractor shall not, in ten days after receiving such claim, give notice to the owner that he intends to dispute it, or if he neglects in ten days to have the matter adjusted, he shall be considered assenting to it. The 3d § provides for an adjustment between the contractor and the worhman. The 4th § provides that if the contractor does not pay the sum ascertained to be due his creditors, in ten days, with the cost accrued, the owner shall pay the same out of the fund in his hands, and which may be recovered from the owner by the creditor of the contractor, in an action for money had and [552] received to the use of said creditor, to the extent of any balance due from the owner. A subsequent statute places the material-man on a footing with the workman, and dispenses with the necessity of having the contract in writing. Statutes, session 1832, p. 181.
The question presented upon the error book is, whether, under the act of 1830, any worhman, or material-man, beyond those employed directly by the contiaclor, has a lien upon the fund in the hands of the owner, and can call
The subsequent sections of the act clearly show,, that this new and extraordinary remedy was intended to be limited to the persons employed by him who contracted with the owner. The 2d § provides that the owner shall furnish his contractors with a copy óf the amount, so that if there shall be any disagreement between him and his creditors, they may adjust the
Judgment reversed.