
    Rudd and another vs. Davis.
    In an action under the New-York city lien law, (Sess. Laws of 1830, p. 412, and, Sess. Laws of 1832, p. 181,) brought to charge the owner of a building for labor and materials furnished the contractor; quere, whether it can be made a ground of recovery, that the contract, so far as a certain note of a third person, therein agreed to be taken as part payment, is concerned, was "originally entered into, and the note delivered, in fraud of the material men.
    
    Upon service of the attested account, the owner becomes liable for any balance due from him to the contractor at that time, or accruing afterward ; and the claimant is regarded as an assignee, pro tanto, of the contractor’s demand.
    After the plaintiff in such action has proved lps account, and a substantial performance of the contractor’s agreement with the owner, this is prima fade sufficient to show moneys due the contractor, out of which the plaintiff is entitled to be paid; and if the fact is otherwise, the onus of proving it is on the defendant.1
    
    The case of Haswell v. Goodchild, (12 Wendell, 373,) commented on, and explained.
    • On error from the New-York common pleas. Rudd and Rudd sued Davis, under the New-York city mechanics’ act. (Sess. Laws of 1830, p. 412, .and Sess. Laws of 1832, p. 181.) Their attested account, which was for labor done, and materials furnished, amounted to $968, and was served a few days after the substantial completion of the building contract. Harold Geer was the contractor. He was, by written contract, to erect certain houses for Davis, for $37,600, payable by instalments ; the last payable when the work was finished. $2344 were, by the terms of the contract, payable in the notes of Seth Geer.
    The plaintifis, after proving their account, and a substantial performance by H- Geer, rested. The court held they must be nonsuited, unless they gave farther proof of money due under the contract at the time when the account was served. To this the plaintifis excepted.
    The plaintiffs then gave evidence tending, as they insisted, to show, that the contract, so far as it respected the note of $2344, was made, and the note finally delivered in payment, with a view to defraud the material men. In this they altogether failed, in the opinion of the court, who non suited them. To this also the plaintiffs excepted; and after judgment, sued out a writ of error.
    
      C. O’Conner, for plaintiffs in error.
    
      J. L. Mason, for defendant in error.
   By the Court, Cowen, J.

Admitting that fraud of the character sought to be established, would form a ground of recovery, (which is quite questionable,) there was clearly no evidence of it which would warrant the court below in submitting the ques-.. tion to the jury.

But we think the court erred in holding, that the plaintiffs were bound to do more, in the first instance, than prove performance by H. Geer, the contractor and principal debtor. Pro tanto, the plaintiffs were assignees of H. Geer’s demand against Davis, (21 Wendell, 405,) who, had he been sued by H. Geer, must have taken the burthen of proving payment, on the latter showing that he had performed. The same rule applies as between Davis and H. Geer’s assignees, the material men. The statute confers on them a right to demand payment out of any arrears of the contractor, due from the owner when the account is served, or accruing afterward. (Vide act of 1830, § 1, 4.)

Haswell v. Goodchild, (12 Wendell, 373,) is not incompatible with the rule mentioned as to the onus probandi. In that case, the extra work was paid for; and though other work was shown to have been done, the evidence was quite equivocal whether it was in fulfilment of any written contract; or if it were, no written contract was produced or shown, to fix the time of payment under it. The decision went on the circumstances ; but it never can be received as repudiating the well established rule, that when .you show work done under á contract, and all the days of payment past, it throws the onus of proving actual payment on the employer. Such is the case before us. ’

Judgment reversed.  