The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-09-14
Marine COnrt.
Before Bon Judge PhiH;ps.
IMPORTANT TO BUILDR

IMPORTANT TO BUILDRRs AND MHCn AMOS,
STTT 49, Richard BulDinkIc William j. Decker
This is proceeding under the act Of July ii 1851 en-
titled tan act fer the better security Of mscnanei and
Others, erecting buildings and furnishing materials
therefor in the city and county Of Ne~ York" By which
the plaintiff seeks TO recover the value OF buIdsg
rAla furnisbed to the contractors Of building alleged 10
There DO question: said the Judge that the BIO
ceedings under which the plaintiff has sought his
medy ceated By express statute Is Is also any ha
plaintiff must bring himself strictly within its req urs
ments TO obtain the benefit Of its provisions Tho sub
stution Of parties to the contract such as are aads
by this act by which the owner Of building il .6s
liable for the claim Of party with whom he made No
contract, and Of whose existence he might hAvs
been gnoraRt, is of itself sufficient Why for shs
ote ction Of the owner the party asking this remedy
should be held to the strict requirements Of the status
and must Be strictly pursued. This principle Il
well settled, lOicott Frazier, HUI, 562; Mard
Robinson, a Hill, Coz; Bussing Bushnell, hll ss2l
IL contested on the part Of the defendant that the
tce CT claim filed with the County Clerk is defective
three particulars, wilt does not correctly state tbs
sames of the owners. Contractors does it give
the street number Of the house The notice alleges thaa
the building Is owned BY William J. Decker; tbs proof
shows that Il is med By William Decker and his part
ner Charles Brown the notice states that contrac
Tor 10 Thomas Pulls the proof sho that the contropors
are Thomas Puls and william Payne la fact, the
COT tract signed Decker Bro and Tnomss Pulls and
William Payne. Tue ntt iee describes the building a.
situated in the Eleventh ward of tho city Of New York
onthe south SIDE OF Ninth street and koesn bsr
OF said street and the notice describe IL as the
uildrg being erected in Ninth street bot yeen ave
and d. In part Of the notice Is tho street
nuuter CT the house syen IL 1t alleged thst tho
number is not knowu. The evidence u oon thi point
shows that the number OF the house in question
5t that the joining Ia oeed 35 and tn at the
street beed both Sides although there I'D beea
building on this lot before the qucstion
ed The notice is in uds Ineot detective In all theee
respects; 10 20 without question relates to tbs
o. the owners and contrscters which ion tant
ard should be correctly stated tn lush ths pro-
ceedpg action at comrson Law. A,tl the ds'set
IN giving the street number 1t la true that the NOTICE t.
cose the len states tbst the umbec Is rot kso IN"
This allegation lis widely ~ yariaoce with the evidsoce
II ia is shown that there had been no baitng
this lot before the one IN question Vas put Yes the
evidence Of the witness shows that with but ittS
care inquiry the correct number could have been as
ceItned and properly set forth Asto the third pnnt
made by the oouafe for the dsfsudaot am II oo,noa
that the proof OF the quantity and value of the mate
rails and that they were uei IN the hudtre is cuff
ciant have passed upon al these questions, that IL
necessary my decision may be- revised by appellate
courts snd thus the constr action OF statute these
points definitely settled But the great question In ths
CAFE before ma is:--Can the piintiH recover ct al
uncer the contract for the buiing In sueatipnf The
contract. which Is Ia evidence provides that tbs
tontscors s,sl be paid by insta mens folio wiz:
Zone quarter OF Tho whole amount when the cucdasou
erees and cellar steps are mOlecd quarter whom
the third tier Of beams are quarter when tho 6fh
story beams are on and the balance when completed"
Tho toa anonnt TO be paid tc the contractors by thu
0sner. was 81 1855 As they become due the paid
~ $40 "a en- the first three irsian.ents being
Ia Irent OF $50 49, After whoh The contractors abau
dor cd The building before il c0p tod according to
aid by tie IN good fatl This Ia not dspdte4
The questions presented cy this state OF facts asCsa
the contractors themselves recover against the owners
and the lien holder be IN better position thar tia
contIaorS The negative OF these PROPOSITIONS 10 sAtsA
In Pts, IS Irwin. Ssrd ?. "a. Tao contract as
TO fourth payment IL sntiisy. sad TIA wovk
t. oompsed before recovery could be had against tbs
owueA Ths 0osHastsa ast tayas coupsssS, tstAay.