Burst v. Jackson , 10 Barb. 219 ( 1850 )

By the Court, Edwards J.

The statement of facts found by the^referees, shows that the plaintiff kept a lumber-yard at Jersey City, and that he furnished Trimble, who was the contractor for building the Bowery Theatre, with a quantity of ordinary dressed and worked lumber, such as is usually sold at lumber-yards ; and that, at the time the plaintiff bought it, it was in the same condition as when he delivered it; and that he performed no other work upon it, than the selecting it out of the piles of lumber, to order. As to the residue of the lumber, for ■which the plaintiff claims to recover, the referees found that it was selected by the plaintiff at Albany; and that it was dressed there by his order, in conformity with a statement furnished, by Trimble, showing the style of lumber which he wanted.

The first question to be considered is, whether the plaintiff comes within the provisions of the act of 1830, for the better security of mechanics, and others, erecting buildings in the city and county of New-York; (Laws of 1830, ch. 330,) as amended by the act of 1832. (Laws of 1832, ch. 120.)

The act of 1830 applies to “ every mechanic, workman, or other person, doing or performing any work towards the erection, construction, or finishing of any building in the city of Newr-York,” <fcc. (Laws of 1830, ch. 330, § 1.) And the act of 1832 declares, that “ all the provisions of the previous act shall apply to the materials furnished and used in the performance of any work by every mechanic and workman, towards the erection or finishing of any building in the city of New-York,” &c. (Laws of 1832, ch. 120, § 1.)

The facts show that the plaintiff was in no manner employed in the construction of the building in question, either as a mechanic or workman. He was a dealer in lumber, residing at Jersey City ; and, as the referees found, did no work upon the theatre. But it is contended that he was a person “ doing or performing work toxoards the erection of the building.” We do not think that such a conclusion is warranted by the facts. As to a portion of the lumber furnished by the plaintiff, it consisted of the ordinary stock which he had for sale in his lumber-yard.As to the residue, inasmuch as he had not the particular kind wanted, he was obliged to procure it; and in order to make it correspond with the statement furnished to him, it was dressed at a saw mill in Albany, by the plaintiff’s orders. The substance of this is, merely, that as the plaintiff had not the particular kind of lumber wanted, he procured it; and, although it became necessary that it should be dressed in a particular Avay, still, when so dressed, it was an article of merchandise; and, as such, Avas sold to Trimble.

The next ground taken by the plaintiff is, that the contractor’s neglect to dispute the plaintiff’s claim, made the account rendered by him conclusive evidence of his right to recover in this suit. But, if the plaintiff’s claim did not come Avithin the provisions of the statutes referred to, we think that it was not necessary to dispute it. The only persons who have any right to deliver to the oAvner an attested copy of their accounts against the contractor, and thus acquire a lien upon the debt due to him, are those mentioned in the statute. If the account rendered to the OAvner is not of such a character as to give the party a lien, even if it is correct, it is not necessary for him to deliver it to the contractor ; or for the contractor to regard it, if delivered to him. The contractor is only obliged to dispute the claim of his journeyman or other person, for work and labor performed, or materials furnished, within the meaning of the statute.

We think that the referees were correct in their ruling upon both the points submitted to them, and that the judgment of the court below should be affirmed.

Judgment accordingly.