
    ISAAC W. BUDD ET AL. v. TRUSTEES OF SCHOOL DISTRICT No. 4, IN THE COUNTY OF CAMDEN.
    The owner of a building is bound to retain moneys due, or to grow due, to the contractor, after being served with notice by the material-man or workman of the non-payment of his claim in accordance with the Mechanics’ Lien law.
    On rule to show cause, &c.
    Argued at June Term, 1888, before Beasley, Chief Justice, and Justices Knapp, Magie and Garrison.
    For the plaintiffs, S. H. Grey.
    
    For the defendants, T. B. Harned.
    
   The opinion of the court was delivered by

Beasley, Chief Justice.

This action is founded on a claim for materials furnished by the plaintiffs in the erection of a school-house. One Massey was the contractor, who having become indebted for the materials just mentioned, and having refused to pay, and notice of such debt and refusal was served on the defendants pursuant to section 3 of the Mechanics’ Lien act.

It appeared that at the time of such service there was nothing due from the defendants to Massey, and the trial court held that such fact was fatal to the action, and that the material-man’s notice would not impound a debt subsequently accruing. This ruling had considerable support from the views expressed in Kirtland v. Moore, 13 Stew. Eq. 106, and Craig v. Smith, 8 Vroom 549. But since the trial of the present case the subject has fallen under the consideration of the Court of Errors, in Mayer v. Mutchler, 21 Vroom 162, and the law has been settled adversely to such intimations. The court of last resort in the case referred to establish the doctrine that under one of these notices the owner must retain a ■sufficient sum to pay the claim, either out of moneys then due or which may thereafter become due under the contract.

As the case, therefore, has been tried upon an erroneous principle, the rule must be made absolute.  