
    Monteith v. Evans.
    Under the lien law of 1830, giving mechanics and laborers a lien upon buildings, the contractor disputing a lien notified to the owner, if unable to adjust the amount with the claimant, must tender to him a written agreement to submit to arbitration. A verbal offer to arbitrate will not suffice.
    If the lien creditor, in a suit against the owner, rely exclusively on the contractor’s having omitted to adjust or arbitrate within the time prescribed, the state of the accounts between the lien creditor and the contractor is of no importance. Whatever that may be, the owner is liable to pay the claim, if such omission be proved.
    (Before Oaklet, Ch. J., and Vanderpoel and Sandford, J. J.) •
    May 22;
    June 30, 1849.
    Tms was an action under the lien law of 1830, amended in 1832, to recover for mason work and materials done and provided by the plaintiff, for and towards the erecting and finishing a house in Clark street in the city of Hew York, built for the defendant by one Thomas, under a contract in writing. The complaint, after stating these facts, and that there was §115 due the plaintiff from Thomas, set forth that, on the 28th July, 1848, he served on the defendant an attested account thereof, with notice of the amount due; that there was then due, or there shortly became due, from the defendant to Thomas under the written contract, sufficient to pay the attested account; that more than ten days have elapsed, and the contractor has not disputed the plaintiff’s claim, or adjusted it, or put it to arbitration according to the statute, or paid the same.
    The answer set forth that the plaintiff had not performed his contract with Thomas, he- had "been overpaid "by Thomas, and owed the latter when the notice of lien was served. That the defendant, on the 4th of August, 1848, delivered the attested account and papers served on him to Thomas, who, on the 7th of August, agreed with the plaintiff to submit his claim to arbitration, according to the statute, hut plaintiff failed to "bring his arbitrator at the time appointed. Thomas again agreed with the plaintiff to arbitrate on the 8th of August, and the latter again failed to attend with bis arbitrator.
    At the trial before Sakdfokd, J., in February, 1849, the defendant offered to prove that the plaintiff did not complete his contract with Thomas, that the payment claimed was not due from the latter, and that he owed Thomas, &e. This was objected to by the plaintiff’s counsel, and excluded by the judge.
    Thomas testified for the defendant, that he received the lien papers from the latter on the 4th of August, and on the 5th served him with a notice that he, the witness, intended to dispute the plaintiff’s claim. On the 7th of August he agreed with the plaintiff to settle the matter by arbitrators, and fixed the place where they were to meet on the same day. Witness attended with Ms arbitrator, but the plaintiff did not attend. A like agreement and failure occurred on the 8th of August. On the 28th of August, a like agreement was made, and on the plaintiff’s omitting to attend, the witness tendered to him a written agreement to arbitrate the matter, executed by himself, .but the plaintiff would not sign it. All the prior agreements were verbal.
    There was some evidence on the part of the plaintiff, contradictory of Thomas’s statements, relative to the agreements to arbitrate, and the failures to comply "by the plaintiff.
    The judge charged the jury, that Thomas was hound, within ten days after he gave the defendant the notice that the plaintiff’s claim was disputed, to adjust the matter either amicably or by arbitration with the plaintiff. That his first efforts to arbitrate, on the 7th and 8th of August, did not fulfil the requirements of the statute, because the agreement to arbitrate should be in writing, and he offered no written agreement to that effect.
    That the plaintiff, however, could waive the statute limitation and arbitrate effectually after the ten days had elapsed. He thereupon left it to the jury to decide whether the plaintiff consented to arbitrate on the 28th of August, intending that it should have the same effect as if it had been agreed to within the ten days. If he did, and Thomas followed it up by tendering, within a reasonable time, the written agreement of that date to enter into arbitration, then the plaintiff could not recover. Otherwise their verdict must be for the plaintiff. The defendant excepted to the charge, and to the adverse rulings during the trial, and the verdict being for the plaintiff, appealed from the judgment to the general term,
    
      J. Edgar, for the defendant.
    
      J. B. Sheys, for the plaintiff.
   By the Court.

As the plaintiff claimed to recover on the ground exclusively that Thomas, the contractor, had not agree,d to arbitrate pursuant to the statute, the actual state of the accounts between him and Thomas, was of no importance. If the plaintiff proved that ground, the statute fixed the defendant’s liability, without any regard to the actual indebtedness.

The only other question in the case is on the instruction to the jury, that the statute creating the lien required the agreement to arbitrate to he in wilting. We think, on consideration, that this interpretation is correct. The contractor is to he the actor in the effort to adjust or arbitrate. This follows from his disputing the claim, of which the lien creditor is not otherwise informed, and from the necessity that one or the other shall be done within a limited time, at his peril. After failing to adjust amicably, he was to do all he could towards arbitrating; and he was to do it in. such a mode as to protect the owner of the building in paying the contract price to him, in case the plaintiff asserting the lien should not unite in the arbitration. A verbal offer to arbitrate is not such a protection. We think the statute never intended that the right of the lien creditor on the one hand, of the contractor on the other, and of the owner, uncertain to whom he owed the obligation, should depend upon the recollection of an offer so liable to be either misunderstood, imperfectly remembered, or designedly perverted. Every other thing required is to be in writing; the account, the claim, copies thereof, the notices, and the award. We suppose the omission to express that the agreement should be in writing, was either because it was deemed to follow from the requirements just alluded to, or because the revised statutes already provided lor written arbitrations. However that may be, we think a sound construction of the act requires that the contractor shall tender to the lien creditor, a written agreement to submit the matter to arbitration, if he dispute the claim and it cannot be amicably adjusted.

Judgment at the special term affirmed. 
      
      
         The illness of Sandford, J., to whom it was assigned to deliver the opinion of the court, prevented his drawing it up iti form, and at the close of the June Term, the decision was announced in the brief manner here stated.
      The provisions of the act of 1830, which came in question, are as follows:— (Laws of 1830, p. 412.)
      § 1. Every mechanic, workman, or other person, doing or performing any work towards the erection, construction, or finishing 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 shall be performed as journeyman, laborer, cartmcn, subcontractor, or otherwise, and whose demands for work and labor done and performed towards the erection of such buildings has not been paid and satisfied, may deliver to the owner óf such building an attested account of the amount and value of the work and labor thus performed and remaining unpaid; and thereupon such owner shall retain, out of his subsequent payments to the contractor, the amount of such work and labor, for the benefit of the person so performing the same.
      § 2. Whenever any account of labor performed on. a building erected" under a contract, in writing, as aforesaid, shall be placed in the hands of the owner of such building, or his authorized agent, it shall be the duty of such owner or agent to furnish his contractor with a copy of such papers, in order that if there shall be any disagreement between such contractor and his creditor, they may, by amicable adjustment between themselves, or by arbitration, ascertain the true sum due; and if the contractor shall not, within ten days after the receipt of such papers, give the owner written notice that he intends to dispute the claim ; or if, in ten days after giving such notice, he shall refuse or neglect to have the matter adjusted as aforesaid, he shall be considered as assenting to the demand, and the owner shall pay the same when it becomes due.
      § 3. If any such contractor shall dispute the claim of his journeymen, or other persons, for work and labor performed as aforesaid, and if the matter cannot be adjusted amicably between themselves, it shall be submitted, on the agreement of the parties, to the arbitrament of three disinterested persons, one to be chosen by each of the parties, and one by the two thus chosen; and the decision in writing, of such three persons, or any two of them, shall be final and conclusive in the case submitted.
      The fourth section gives to the lien creditor an action against the owner, on the contractor failing to pay the amount ascertained, &c. The act of 1832 extended the lien to materials furnished and used in erecting buildings.
     