The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-10-03

lots 70 the amount stipulated and agreed upon BY he con-
tract for the erection Of such buildings Ths section
not rs is commended for by the Common Pleas limit the
extent of iiens 10 the upon the contract but
70 the amount stipulated aud agreed be paid the
contract tor the building The second section provides
that any person furnishing materials performing labor
IN pursuance with written contract with the his
agent shall recover than the price therein stpuat
ed The third section provides that any person performing
labor, or furnishing materials without contract with the
owner or his agent shall produce the best evidence in his
power value of such labor materials and that the
labor was employed o,Sthe materials used by the
owner or his agent the original contractor in the
tion OF the building. Not solitary word is uttered
restricting the amount of recovery to the amount due
from the TO the original contractor The law says
In emphatic terms, that the laborer and the material
man shall have lien for the value OF the labor and the
materials The Common Pleas say that they shall only
have lien for the amount due from the to the
contractor II is not little singular that the IegJa
ture should have left important provision of the act
to be appended TO the statute by tho Judges of the Com
lleass The fourth section Of the act provides for
the orecosng Of the en giving the owner notice to APP
pear before the court at specified time and submit to
an accounting and settlement Of the amount due or
claimed TO be due for the labor performed the mate
rals furnished in the erection OF the building Here
again, 10y the very terms of the act the claimant is ent
tied 10 the amount due TO him. and not to the
amount or any portion thereof which may be due the
contractor The claimant is not called upon to contend
with any such emergency contingency BY the fifth
section Of the act the claimant within fifteen days
after the service OF the notice referred in the preceding
section shall serve upon the bill of the particu
lars Of the amount claimed to be due him. The owner
shall, in Ike manner, serve upon the claimant bill of
the particulars OF any set off which may be claimed The
notice OF toH here refers to any specific and Iguidated
OF money which may have been paid to the claimant
either by the over in person. or by his immediate con
tractor or agent But expression Il contained in this
section limiting the recovery to the amount due the con
tractor. The claimant the amount due 10 him.
self, less any which he may have received from
either the the contractor Section six provide,
that the hen may be filed at any time within six months
after the performance Of labor the furnishing OF
teraL Section provides for the Of the
damages due the claimant Section eight and the last
one which il is now material to consider provides that
upon THO appearance of both parties in court issue shall
be Joined upon the claim made and the notice of of
served by the This the only issue provided for
by the terms OF the act and the only be
joined in order 10 subserve the plain object of the
Thus, if the suit be brought by material against
the for materials furnished his contractor where
a contract has been entered into between the owner
and tina builder, the claimant must show that the
material, used in the erection OF the building;
and Il is presumed also that the materials of the
kind and quality required by the terms of the
tract Tie claimant aving established these facts there
is provision in the act which renders it competent for
the owner to set of the payment of solitary fraction
which he may have paid to his contractor The owner
may show only actual payments TO the claimant-pay
mcns made by either himself his agent contractor
that the maeriaswere inferior in Kind and quality
those called for by ,the of the contract Further
than this theowner cannot 20. Aud unless set at de-
fance every accredited rule by wichshe meaning Of Ian
guage is ordinarily determined there does appear in
the whole act word or sentence upon which respect
able claim be rredcaed III behalf Of the construction
given Il BY the Court OF Common Pleas. The opinion of
the Common Pleas, in the referred to- may contain
reasons why the act ought not 10 have been passed and
might be considered as an appropriate argument to have
addressed the Legislature in opposition to its PASSAGE but
the sole question for the court is What the intent
and spirit of the act. This court feel particular in
clnaton to into controversy concerning the Jus
ce the injustice Of the act but to give effect to its
manifest spirit and intent If the law is oppressive in its
operation Ga position by means here considered to be
upon the statute book let it be promptly carried into
elect