
    Lumbard vs. The Syracuse, Binghamton and New York Railroad Company.
    One who, since the enactment of the mechanics’ lien law, applicable solely to the county of Onondaga, (Zatos of 1864, ch. 366.) and the act amending the same, (Laws of 1866, ch. 788,) furnishes materials, and performs labor,! upon a building, in that county, for a sub-contractor, comes within the clear object and intent of those acts, and has the right to place a lien upon the building, for the amount of his demand, by filing a claim and serving notice thereof within the required time, and while there is due from such owner, to the original contractor, enough to pay the amount of such claim.
    PPBAL by the defendant from a judgment directed at a Special Term, on a trial before the court, without a jury.
    The following facts were, by a stipulation between the parties, admitted:
    That prior to November, 1869, and on or about the 30th day of July, 1869, one John Moore entered into a contract for the execution and completion of a railroad engine building, or round house, with the railroad company at their depot at Syracuse, and to furnish all the materials, for the price or sum of $8,476, according to certain specifications. That said Moore sub-let the carpenter and joiner work, and putting on the roof, and furnishing the materials, to Saulpaugh & Jackson, carpenters and joiners of said city, which contract was in writing. That said Saulpaugh & Jackson, sub-let, by contract, the putting a cement and gravel roof on said building, or round house, and furnishing materials to Isaac Lumbard, the plaintiff in this action. That said contractor and sub-contractors entered upon said several contracts, and completed the said job. That the plaintiff furnished the material, and performed the labor, and put on and completed said roof, and that there was a balance mow due to the plaintiff of $527.63, with interest. That the railroad company owns the land upon which said building was erected, and described in the notice of the foreclosure of the lien in this action set forth, in Syracuse, and did at the time of making said contract and the doing of said work. That a mechanic’s lien was put on said building and land by the plaintiff, by filing the notice with the county clerk of Onondaga county on the 16th day of December, 1869, and serving a copy on the said railroad company within the time required by law. That at the time of filing and service of said notice of lien, there was about the sum of $3,000 due and owing on the contract and for building said round house, from said railroad company, to said Moore.
    In addition to the above facts, so admitted, the justice found that at the time of filing notice of lien, there was due from the contractor, Moore, to Saulpaugh & Jackson, sub-contractors for the carpenter and joiner work, the sum of $202.18 only, and which is still due and unpaid. And there being due the plaintiff, as admitted, from Saulpangh & Jackson the sum of $537.63, with interest from November 38, 1869, and there also being due from the owner of the building to the contractor, John Moore, more than enough to pay this sum, with interest, the court decided, as a matter of law, that the plaintiff had a lien, as claimed, for the same upon the lands specified in notice of lien, as against the owner; and was entitled to judgment against William H. Saulpaugh, survivor of Saulpaugh & Jackson, for the said sum of $537.63, with interest on the same from November 38, 1869, to wit, $43.37; total, principal and interest, $571, and that the same be adjudged and declared a lien on the premises in question, and a sale therefore, to satisfy the said amount, with costs of action.
    
      Wm. C. Ruger, for the appellant.
    
      H. Burdick, for the respondent.
   By the Court, E. Darwin Smith, J.

This action was brought to foreclose a mechanic’s lien, under two acts of the legislature specially applicable to the county of Onondaga.

The first act -was passed April 35th, 1864, (see Laws of 1864, ch. 366, p. 856,) and provides, in section 1, as follows: “That any person who shall, in pursuance of any contract, express or implied, either with the owner of the property or any contractor, perform any labor or furnish any materials in building, altering or repairing any house or other building in the county of Onondaga, to the amount of twenty dollars or over, or any person who has made a contract for the same, shall, until the end of three months after the performance of such labor or furnishing materials, be deemed to have an equitable lien for the same upon such house or building, or appurtenances, and the land upon which the same may be situated.”

The second section of said act provides for the filing of a notice of such lien while the work is in progress, or within three months after the completion of such work. Section 1 of the act of 1866, (see Sess. Laws of 1866, ch. 788 p. 1693,) protects the owner of such property, so far as relates to payments made to any contractor in good faith before notice of such lien.

The plaintiff is within the clear object, and intent of these acts. From the facts admitted and found by the judge who tried this cause, without a jury, it appears that the defendants let a contract to one Moore, July 20, 1869, to build for them an engine or round house, for $8,476. That the plaintiff furnished materials and did work upon said round house under Saulpaugh & Jackson, sub-contractors of said Moore, to the amount of $527.63, for which he had not been paid, and for which he filed a claim in due time under the acts aforesaid, and served notice thereof upon the defendants within the time required by said acts, and at a time when the said defendants still owed the said Moore about $3,000 on the original contract. The only point made by the defendant’s counsel is, that the plaintiff did the work under sub-contractors of Moore, who had been paid by said Moore the full amount due under their contract, except the sum of $225, for which alone it is claimed that the plaintiff is entitled to enforce his lien under said acts.

This view, it seems to me, is in clear conflict with the explicit language and clear intent of these acts, and suggests a wrong or possible injury to the actual laborer in such cases, which the legislature clearly intended to prevent—that is, arrangements and contrivances to defraud him of pay for work done and materials, between the owner and contractors, or between contractors.

The laborer is entitled to look to the owner and to the property for Ms pay, to the extent of the original contract price for the work; and the owner is bound to keep such price as a fund to pay laborers and under-contractors, for materials and work, so far as he has notice of their liens, or of the intent to rely upon such security, by actual notice for that purpose, before he has paid the primary contractor in full for the whole job or work.

[Fourth Department, General Term, at Rochester,

April 1, 1873.

Mullin, Talcott and E. D Smith, Justices.]

The very facts of tMs case illustrate the beneficial object and effect of these statutes, and the mischief they were intended to prevent, in respect to workmen under sub-contractors.

The judgment rendered at Special Term was clearly right, and should be affirmed, with costs.  