author: By the Court. Bosworth, J.

text:
    Stephenson v. New York and Harlem Railroad Company.
    An agent of a railroad company stated that the title of his office was superintendent, and that, as such, he had a general supervisory control over the whole line of the road, everything connected with the running of the road being under his supervision and control, and that he paid money to drivers, conductors, and other persons employed by him as superintendent, but had no direction over the treasury.
    (Before Bosworth and Emmet, J.J.)
    October 12;
    November 19, 1853.

      He Id, that it was not to be inferred from this description of his powers that he was authorized by his office to arrange and liquidate claims made against the company, for the negligence of its servants in running its trains, or, as agent, to contract with third persons to repair or remedy the consequences of such negligence.

      Held, therefore, that the superintendent of the road of the defendants, in the case before the court, had no authority to bind them by the employment of a physician or surgeon to attend upon a child, which had been run over by a car, and severely injured.
    There being no other proof to charge the defendants—Held, that plaintiff was rightly nonsuited.
    Appeal, by plaintiff, from a judgment dismissing the complaint.
    The action was brought to recover the amount of a bill, alleged to be due from the defendants to the plaintiff, for services rendered by him at their request, as a physician and surgeon.
    The complaint averred, that on the 9th day of June, 1849, the said defendants, in the city of New York, by their agent, Mr. Sloat, employed the plaintiff in his professional capacity as a surgeon and physician, to attend to one Peter Peteniat, a child, who had, on the said 9th day of June, 1849, received certain severe physical wounds and injuries, in consequence of having been run over, or in some other way injured by the horses, or by a certain car belonging to said defendants, and to amputate the leg of the said child, and otherwise to heal, cure, and restore the said child; whereupon this plaintiff, on the express engagement of the said Sloat, in behalf of the said defendants, that they would pay him for the same, did, in his said capacity of surgeon and physician, on the said 9th day of June, 1849, attend to said child, and amputate Ms leg ; and did, from the said 9th day of June, 1849, to the 10th day of August, 1849, attend to said child, and endeavor to heal, cure, and restore him, and did. find, provide for, and administer to said child divers medicines, remedies, and other necessary things in the healing and curing of said child; for which attendance and cure of the said child, and the medicines, remedies and other necessaries so provided by this plaintiff, at the request and on the behalf of the said defendants, the said defendants are justly indebted to this plaintiff in the sum of $227.50, for which sum, with interest and costs, judgment was demanded.
    The answer took issue on all the material allegations in the complaint, and denied, specially, that Sloat had any authority from the defendants to employ the plaintiff.
    The action was tried before Mr. Justice Mason and a jury, on the 5th of February, 1851.
    . It was proved, on the part of the plaintiff, that the child mentioned in the complaint had been run over by a railroad car belonging to the defendants, and severely injured, in the month of June, 1849, and that the plaintiff, as a physician and surgeon, had attended the child, and performed the services stated in the complaint. One of the witnesses testified that Sloat, who represented himself to be an agent of the defendants, said, that “ he wished the child tó have a first-rate physician, and would see that it should all be right.” Another, that Sloat told him (the witness) to “ have the best medical attendance for the child, and that the company would be responsible for the payment;” and that Sloat made afterwards, through an interpreter, the same statement to the father of the child. A third witness swore substantially to the same facts, and that the father had employed the plaintiff. There was no proof that Sloat had made any direct communication to the plaintiff, or that the latter had any knowledge of the assurances which Sloat had given.
    Sloat was then examined as a witness, on the part of the plaintiff, and testified as follows.
    “ I am one of the officers of the Harlem Railroad Company, and have been in the employ of the company as such, for nearly three years. The title of my office is superintendent. I have a general supervisory control over the whole line of the railroad, from New York to Dover Plains. The advertisements in the newspapers, with regard to the starting of the cars, their stoppage, times of arrival and departure, and general arrangements, are all signed by me, ‘ M. Sloat, Superintendentthe large placards, giving these particulars, relative to the motive power, posted up in the cars, and at the station-houses along the road, are also signed in the same maimer; everything connected with the running of the road is under my supervision and control. I wish to say that I have no direction over the treasury. I go up and down on the road, between the City Hall and Dover Plains, very often, in the discharge of my duties, as superintendent, I am on the track, in the discharge of my duties, more or less every day. My office is at the corner of 4th Avenue and 27th street. I do not go up and down the track at any stated times, but as my duties call me, sometimes a greater distance, sometimes a less. I have been in the habit of going up and down as superintendent, between here and Dover Plains, during the last three years. I suppose I am pretty well known along the line, as superintendent. I pay money to drivers, conductors, and other persons employed by me, for the company, connected with my business, as superintendent.”
    On being cross-examined, he said: “ I have no share in the direction of the company’s affairs.”
    The counsel for the plaintiff here rested, and the counsel for the defendants moved the court for a nonsuit, upon the following grounds.
    I. That there was not sufficient evidence to go to the jury, that the superintendent, Sloat, was authorized by the defendants, as their agent, to employ the plaintiff for the services performed by him.
    H. That there was not sufficient evidence to go to the jury, that the plaintiff had been employed by the said Sloat.
    His honor the judge, thereupon ruled in favor of the grounds taken by the counsel for said defendants, and directed a nonsuit to be entered against the said plaintiff; to which ruling and decision, the counsel for the said plaintiff then and there excepted.

      W. A. Butler, for plaintiff and appellant.

      It is insisted on the part of the appellant that the court erred in taking the case from the jury.
    I. The question was not whether the agent and superintendent, Sloat, was authorized by the defendants to employ the plaintiff to perform the services rendered, but whether plaintiff had a right, under all the circumstances, to infer or suppose that he possessed such authority, judging from his own acts and those of his principals. (Perkins v. Washington Ins. Co., 4 Cowen, 645, 660; Lightbody v. N. A. Ins. Co., 23 Wendell, 18; Johnson v. Jones, 4 Barbour, 369.)
    II. There was sufficient evidence to warrant the jury in finding that the superintendent, Sloat, was authorized on the part of the defendants to employ the plaintiff; such employment was within the scope of the authority of Sloat, as agent and swperimtendent.

    III. Even if out of the scope of his ordinary duties or .authority, the emergency of the case and the benefit resulting to the defendants from the employment, justified the act of Sloat in employing the plaintiff, and having been done in good faith, it is binding on the defendants. (Story on Agency, §141.)
    IV. There was sufficient evidence to warrant the jury in finding that the plaintiff was employed by Sloat. 1. The promise to pay for medical assistance, though not made directly to plaintiff, was clearly intended for his benefit, and contemplated the performance of the service by him. 2. The promise to pay such surgeon as might perform the service, is good, and enures to the benefit of him who performs it. (Barker v. Bucklin, 2 Denio, 45, 51, and cases there cited.) It is analogous to the offer of a reward, which has always been held to entitle the party who brings himself within the terms of the offer, to maintain an action. (Williams v. Carwardine, 5 C. & P. 566; S. C. 4 B. & A. 621; Lancaster v. Walsh, 4 M. & W. 16; Loring v. Boston, 7 Met. 411; Wentworth v. Day, 3 Met. 352; Fallick v. Barber, 1 M. & S. 108.)
    V. A new trial should be granted, costs to abide the ' event.

      C. W. Sandford, for defendants.

      I. The pleadings distinctly put in issue, the authority of the superintendent, Sloat, to employ a surgeon; but no evidence was given of any such authority.
    EL The evidence showed that Sloat was employed merel/y as supermtendmt of the moime power, or mmivng of the rail/road. That he had nothing to do with its finances, and no share in the direction of the company’s affairs.
    III. Acts of agents beyond their powers, are not binding on a corporation or individuals. (Munn v. Commission Company, 15 Johnson, 44; Angel & Ames on Corp. 172, 3, 4; Beals v. Allen, 18 Johnson, 363; Hartford Bank v. Hart, 3 Day, 493; Dispatch Line v. Bellamy Manuf Co., 12 New Hampshire, 205; Ready v. Tuscaloosa, 6 Alabama, 327; Martin v. Manuf. Co., 9 New Hampshire, 51; Farmers' Bank v. McKee, 2 Barr, 318; Boom v. City of Utica, 2 Barbour S. C. R. 104; Mann v. Currie, id. 294; Johnson v. Bush, 3 Barbour’s Ch’y Reports, 207; Brown v. Appleby, 1 Sandford’s Sup. Ct. 158; Hone v. Allen, 1 id. 171, Note.)
    IV. The nonsuit was properly entered.
   By the Court. Bosworth, J.

At the conclusion of the testimony a nonsuit was moved on two grounds. The case states, the judge ruled in favor of the grounds taken by the counsel for said defendants, and directed a nonsuit to be entered against the plaintiff, to which ruling and decision the counsel for the plaintiff then and there excepted.”

If either ground was sufficient to justify the nonsuit, the judgment must be affirmed.

A nonsuit was moved on the ground, 1st—“ That there was not sufficient evidence to go to the jury, that the superintendent, Sloat, was authorized by the defendants, as their agent, to employ the plaintiff for the services performed by him.”

The answer denies that the defendants ever did, at any time, authorize the said Sloat to employ any person or persons, as physician, or otherwise, to render services to said Peter Peteniat, as alleged in said complaint.

The title of the office held by Sloat is “ Superintendent.” The only evidence of the nature and extent of his powers is such as the title of his office implies, and that furnished by his own testimony. There is no evidence, that he ever made any other contract of a like character.

He testified that everything connected “ with the running of the road” was under his supervision and control. That he had no direction over the treasury, and had no share in the direction of the company’s affairs. He pays money to drivers, conductors, and other persons employed by him for the company, connected with his business as superintendent.

The only inference deducible from his description of his powers is, that they relate solely to making provision that trains are run as prescribed by the company, that means and men are supplied for the purpose, and other things are provided, which are essential or proper to effectuate this general result. His description of his powers, or of the business which he transacts, does not justify the inference that he is authorized, by his office, to arrange and liquidate claims made against the company for the negligence of its servants in running its trains, or to contract with third persons, as its agent, to repair or remedy the consequences of such negligence.

There is nothing in the evidence to justify the application of the principle that whether authorized or not, yet the plaintiff had a right to infer and act on the inference, that judged by his own acts and those of his principal, he possessed such authority.

This case differs, in its essential facts, from that of Perkins v. Washington Ins. Co., 4 Cowen, 645. In this case, there is no evidence that the superintendent was ever authorized to employ, as agent of the company, in any event, or upon any contingency, a physician to attend upon persons injured by the running of the company’s cars, or that they ever ratified, or knew of any such contract made by him.

In Perkins v. The Washington Ins. Co., Russell, who advertised himself as the agent of the company for the city of Savannah, was authorized to agree to make insurances, to receive and remit the premiums, and if the company actually received the money, and the rates charged were such as they had prescribed, and the terms of the agreement corresponded with their regulations, they agreed to furnish a policy which should be operative from the time of the payment of the premium to Russell. Prior to the transaction between himself and Perkins, he had agreed to insure for a number of individuals, had received the premiums and transmitted them to the defendants, and in every instance except one, the company had issued policies bearing date at the time the receipt was given by Russell for the insurance. Perkins had paid to Russell the highest rate of insurance, had tendered the amount to the company, and there was no ground on which they could exempt themselves from giving a policy, except the arbitrary one, that they did not choose to do so.

In Lightbody v. The North American Insurance Company, 23 Wend. 18, Wayner was expressly authorized to unsure. He was furnished with blank policies executed by the officers of the company, really to be delivered to anyone who might wish to contract, after his name, the subject insured, the extent of the risk, and the date of the transaction, had been inserted in the contract. As to all persons, ignorant that his appointment restricted him in the exercise of his agency to a specific locality, . he was a general agent, with unlimited authority. • The plaintiff had no notice that he was restricted in the exercise of his powers to a defined territory.

In the case at bar, there is no eyidence that Sloat was ever authorized to make, on any contingency, such a contract as the plaintiff alleges was made with him, or that, with the exception of this instance, he ever made such a contract, or represented himself authorized to make one of such a character.

It is urged that the emergency of the case and the benefit resulting to the defendants from the employment, justified the act of Sloan in employing the plaintiff, and that having been done in good faith it is binding on the defendants.

We cannot assent to this proposition. Ho emergency arose, which but for this employment would have interrupted or prevented the running of defendants’ cars. If the injury was not caused by the negligence of its servants, contracting to pay for expenses to which they could not be subjected by law, would be no benefit to the company. If caused by such negligence this employment would not exonerate them from any liability, which would otherwise have attached. The principle sought to be invoked has no application to the facts of this case.

We are of the opinion, that the nonsuit was properly granted on the first ground on which it was moved, and that the judgment appealed from should be affirmed.


source: Caselaw Access Project

author: By the Court. Duer, J.

license: Public Domain

text:
    Fairbanks and others v. Bloomfield and another.
    (Before Duer & Bosworth, J.J.)
    October 18.
    November 19, 1853.
    Whether an instrument in writing is or is not a valid mortgage is a question of law, and to enable the court to determine it when the action is founded upon the writing, either the whole instrument, or those provisions which are relied on as giving to it the character of a mortgage, must be set forth in the complaint.
    When the complaint averred that the defendants had seized and taken possession of a vessel, the value of which was sought to be recovered under an attachment issued under the laws of Connecticut, and did not show nor aver that the attachment was void;

      Held, that the refusal of the defendants to deliver the possession was justifiable upon the face of the complaint. Judgment for defendant upon demurrer to the complaint.
    .Appeal from an order at special term, overruling a demurrer to the complaint.
    The complaint is in the words that follow.
    The plaintiffs in this case complain against the defendants, and allege that they, the said plaintiffs, are co-partners, doing business under the firm of Fairbanks & Allison, in the city of Halifax, in the province of Hova Scotia. That one Gilmore Densmore M'Lellen, being the owner of a certain vessel or brigantine, called the Bloomfield, and being indebted to the said plaintiffs in the sum of eight hundred pounds, Hova Scotia currency, did, on the twenty-third day of May,- A.D. one thousand eight hundred and forty-eight, execute to the said plaintiffs a mortgage for the said sum of eight hundred pounds, Hova Scotia currency, upon the said brigantine Bloomfield; "that under and by virtue of the said mortgage, the said plaintiffs became entitled to the possession of the said brigantine Bloomfield on the twenty-third day of August, one thousand eight hundred and forty-eight, as by the said mortgage ready to be produced, as this court shall direct, will more fully appear.
    And the said plaintiffs allege that at the time they became entitled to the possession of the said brigantine aforesaid, the same had been seized and taken possession of, under process of attachment, issued at the suit of the said defendants, on the 25th day of July, one thousand eight hundred and forty-eight, under the laws of the State of Connecticut, at the suit of the said defendants against the said John Gilmore Densmore M'Lellen, and were then in the custody of John Stevenson, a constable of the town of Bridgeport, in the county of Fairfield, and state of Connecticut. That the said vessel was so seized and taken possession of by the direction and at the instance of the said defendants.
    And the said plaintiffs further allege that after they became entitled to the possession of the said vessel as aforesaid, they made a demand for the same of the said defendants; that the said defendants refused to deliver or authorize the said constable to deliver the said vessel to the said plaintiffs.
    Whereby the said plaintiffs allege that the said defendants unlawfully converted the said vessel to their own use, and they therefore claim that the said defendants are indebted to them, the said plaintiffs, in the sum of three thousand two hundred dollars, being the amount due to them upon the mortgage aforesaid ; and also in the sum of one thousand dollars, being the damage they have suffered from the loss of the possession of the said vessel; and they pray judgment accordingly.
    The demurrer was general, on the ground that the complaint did not state facts sufficient to constitute a cause of action.

      H. B. Cowles, for defendants.
    The demurrer is well taken, because
    I. The complaint does not state facts sufficient to constitute a cause of action. 1. It does not show that the plaintiffs had any valid title to, or property in the vessel in question. 2. It does not show the terms of the contract or agreement which is called a mortgage of the vessel. Whether the contract constitutes a mortgage or not is a question of law, to be pronounced by the court upon the facts. 3. It does not show when the moneys claimed under the contract were due or payable, or that by its terms the plaintiffs were entitled to the possession of the vessel, or that there had been a default in payment. 4. It does not show where the contract or agreement called a mortgage was made, or executed, or where it was to be performed. Hor that it was valid where made, or to be performed, or gave the plaintiffs any right to the possession of the vessel under it. Its construction may depend upon the lex loci conhractüs. 5. The complaint does show, that possession of the vessel was not taken by the plaintiffs when the so-called mortgage was executed, and that they did not claim to be entitled to the possession of it until long afterwards. 6. Ho fact or reason is stated in regard to the possession upon which the court can pronounce the so-called mortgage valid, or that the plaintiffs thereby acquired title to the vessel. 7. It appears by the complaint that before the plaintiffs claimed to be entitled to the possession of the vessel by virtue of the so-called mortgage, she had been seized and taken possession of by process of attachment, issued under the laws of Connecticut, at the suit of the defendants, against M‘Leland, and was then in custody of a constable, &c. Under these circumstances, the plaintiffs had no right or title to the vessel at all, and the attachment would hold her. (Swift v. Thompson, 9 Conn. Rep. 63 ; ib. 216.) She was in the custody of the law under process issued under the laws of a sister state, and no action will lie against the defendants on the grounds alleged in the complaint. (Jenner v. Joliffe, 6 John. Rep. 3; 9 ib. 381.) The equity of redemption at least might be properly taken on the attachment, at the time the vessel was taken, and she might be sold subject to the so-called mortgage of the plaintiffs. The defendants were not bound to deliver her to the plaintiffs, the more especially as it does not appear that there was any evidence of title exhibited by the plaintiffs to the defendants, or any ground of right or claim stated to them. 8. The complaint does not show that after the attachment was so issued, the plaintiff had power to supersede it, or order the vessel delivered to the plaintiffs. Or that the plaintiffs paid or offered to pay the costs incurred upon the seizure upon the attachment. The remedy of the plaintiffs, if they have any, is by replevin against the officers. 9. The complaint does not state the time or place when and where the alleged demand was made. 10. It does not show facts upon which an unlawful conversion can be predicated or adjudged. 11. The complaint attempts to make the plaintiffs’ conclusions of law and fact supersede the necessity of stating the facts constituting their cause of action.

      R. S. Emmet, for plaintiffs.
    I. The complaint is sufficient in form and substance. It shows a special property, with a right of possession of the brig Bloomfield in the plaintiff, and a tortious conversion by the defendants before suit brought.
    II. The possession of the defendants, and the officer under the attachment against the mortgagor, were subordinate to the plaintiffs’ right to take possession under his mortgage, when it became due. 1. A mortgagee, with right of possession, may maintain trover for the conversion of - a chattel. (Slack v. Littlefield, Harper, 298; Gordon v. Harper, 7 Term 9; Matteson v. Baucus, 1 Comst. 295; Reynolds v. Shuler, 5 Cow. 323; Stuart v. Taylor, 7 How. Prac. R. 251; Fenn v. Battleson, 8 Eng. L. &. E. R. 483.) 2. The possession of the officer under the direction of the defendants, was equivalent to possession by themselves, as regards these plaintiffs. (Libby v. Soule, 1 Shep. 310; Jenner v. Joliffe, 6 John. 9.) 3. A mortgagee may maintain trover for a conversion of a chattel by a. stranger, whilst it was in the possession of the mortgagor. (Suyder v. Hilt, 2 Dana, 204.)
    III. Even if the original taking had been lawful (which we do not admit) that would not justify the defendants’ wrongful conversion by refusing possession to the plaintiff on demand. (Murray v. Burling, 10 John. 172.)
    TV. Whether there are circumstances to justify the refusal, or whether the person making the demand had authority to do so, are questions of fact for a jury. (Dent v. Childs, 5 Stewart & Portm. 383.)
    V. It was not necessary to set forth the mortgage at length, nor the place of execution. The defendants might have procured an inspection of the mortgage by application to the court, under section 380 of Oode, or might have compelled the plaintiff to make the complaint more definite and certain, under section 160 of Code.
    The order of the Special Term, overruling the demurrer, should be affirmed.
   By the Court. Duer, J.

The demurrer to the complaint, we think, is well taken.

Whether the instrument, by virtue of which the plaintiffs aver that they became entitled to the possession of the vessel, is or is not a mortgage, is plainly a question of law, which it belongs to the court to determine; and to enable the court to, determine it, the complaint ought to have set forth, if not the whole instrument, at least those provisions which are relied on as giving to it the character of a mortgage; in other words, of an instrument vesting in the plaintiffs a legal right to the possession which they claimed. In calling the instrument a mortgage, the plaintiffs substitute their own opinion, or that of their counsel, for the judgment of the court. The safest course, under the Code, where the action is founded on an instrument in writing, is to annex a copy and refer to it as a part of the complaint.

The next objection is perhaps still more evidently fatal. The complaint admits that before the plaintiffs became entitled to the possession, the vessel had been seized and taken possession of under an attachment issued at the suit of the defendants under the laws of Connecticut, but does not show, nor even aver, that the attachment was irregular and void, either absolutely or as against the plaintiff; and, if not, the defendants were entirely justified in their refusal to comply with the demand of the plaintiffs that they would deliver to them the possession of the vessel, or authorize its delivery by the constable. Nor does it appear that they could have given any order to the constable which he would have been bound to obey. Primé facie, an order of the court from which the attachment issued was necessary to discharge it, and until it was discharged, it was the duty of the officer to retain the possession, which it doubtless enjoined him to keep.

It is true that the complaint concludes by averring that the defendants unlawfully converted the vessel to their own use, but as the averment is not warranted by the facts that precede it, it is wholly immaterial.

The complaint has throughout the usual defects of substituting conclusions of law for the facts, which ought" to be so clearly and fully stated as to enable the court to draw the proper conclusions—that is, to say whether they do, or do not, constitute a cause of action.

The order overruling the demurrer is reversed and the defendants are entitled to judgment, but the usual liberty to amend, upon payment of costs, is given to the plaintiffs.


text:
    Westervelt and another v. Levy.
    (Before Duer, Bosworth, & Emmet, J.J.)
    October 20.
    November 19 1853.
    In an action against the owner of a building in the city of Mew York, to recover a balance, alleged to be due from him upon the contract for the erection of the building, the defendant cannot set tip as a bar to a recovery, that mechanics and other persons had taken the necessary preliminary steps for establishing liens upon the building, for labor performed, or materials furnished by them, at the request of the contractor.
    The defendant, in such a case, should seek relief, either by instituting a cross-action, making all the persons claiming liens parties thereto; or by a special application for liberty to pay into court the amount due from him upon the contract, to abide a final decision upon the claims, and for a stay of proceedings in the meantime.
    The mere pending of claims under the lien law, which have not been satisfied nor even established, can be no defence to an action for the recovery of the sum he had expressly covenanted to pay. Judgment for plaintiff affirmed with costs.

      Appeal by defendant from a judgment at special term upon the report of a referee, in favor of the plaintiff, for $4627.70, including costs.
    The action was brought to recover a balance, alleged to be due from the defendant upon a contract between him and one Purss, for the erection of a building upon lot 49 Maiden Lane, in the city of Mew York. The plaintiff claimed as the assignee of Purss.
    The principal defence set up in the answer, and that to which the questions before the court alone related, was, that certain mechanics and other persons, who, at the request of Purss, had performed labor, and furnished materials for the building, had acquired liens thereon, pursuant to and in the manner required by the 6th section of the Act, “ For the better security of mechanics and others, erecting buildings and furnishing materials therefor, in the city and county of Mew York,” passed July 11,1851. That the liens so created had not been discharged, nor in any manner brought to a close, and amounted to the sum of $8,247.96, which sum the defendant claimed to set off against the demand of the plaintiff.
    The referee, W. Inglis, Esq., made a special report—that part of it, which relates to the above defence, is as follows.
    And I do further report, that I find that Horace Beals, surviving partner, &c., on the eleventh day of September, one thousand eight hundred and fifty-one, served a notice in writing upon the clerk of the city and county of Mew York, specifying that, under an agreement with the said Joseph D. Purss, he had furnished materials and performed labor towards the erection of the said building, number 49 Maiden Lane, to the amount of $561.97 ; that on the twenty-third day of September, in the same year, Charles H. O’Hara served a notice on the said clerk, specifying that, under an agreement with the said Purss, he had furnished materials and performed labor towards the erection of the said building to the amount of $704.05; that on the third day of October, in the same year, William Joyce served a notice on the said clerk, that, under an agreement with the said Purss, he had furnished materials towards the erection of the said building to the amount of $545 ; that on the fourth day of October, one thousand eight hundred and fifty-one, George J. Lorton served a notice on the said clerk, that, under an agreement with the said Purss, he had furnished towards the erection of the said building, materials to the amount of $250; that on the sixth day of October, in the same year, L. W. Halsey served a notice on the said clerk, that, under an agreement with the said Purss, he had furnished materials and performed labor towards the erection of the said building, to the amount of $700 ; that, on the nineteenth day of ¡November, one thousand eight hundred and fifty-one, Westervelt & Bogart served upon the said clerk a notice, that, under an agreement with the said Purss, they had furnished materials to the erection of the said building to the amount of $2,924.27; that on the eighth day of January, one thousand eight hundred and fifty-two, William A. Sinclair served a notice on the said clerk, that, under an agreement with the said Purss, he had furnished materials to the erection of the said building on the lot number 49 Maiden Lane, to the amount of $25.48; that on the thirteenth day of February, in the year last mentioned, Levin FT. Cowley served upon the clerk of the city and county of ¡New York a notice that, under an agreement with the said Purss, he had furnished building materials to the erection of the said building to the amount of $130. That the said Levin FT. Cowley, on the seventeenth day of February last aforesaid, served upon the said clerk a notice, that, under an agreement with the said Purss, he had furnished materials to the erection of the said building to the amount of $130 ; that on the eighteenth day of the same month and year last aforesaid, certain persons doing business under the name and firm of S. B. Althouse & Co., served upon the said clerk a notice, that, under an agreement with the said Purss, they had furnished materials to the erection of the said building, to the amount of $2,277.19. That such notices specified the amounts of the respective claims of the said persons, for such labor performed and materials furnished in and upon the said building, and the name of the person against whom the said olarmK were made, the name of the owner of the building, and the situation of the building by its street and number, and that the said clerk entered the particulars of the said notices in a book kept in his office, called the “ lien docket,” pursuant and in the manner required by the 6th section of an act of the legislature of the State of New York, entitled, “ An Act for the better securing of mechanics and others erecting buildings, and furnishing materials therefor, in the city and county of New York,” passed July 11th, 1851; and that the persons, excepting the said William A. Sinclair, who have given such notices to the said clerk of the city and county of New York, pursuant to and in the manner required by the 6th section of the said act, respectively caused notices to be served personally on the defendant in this action, requiring him to appear in the Court of Common Pleas for the city and county of New York, at certain times specified in the said notices, none of which times were less than twenty days from the time of such services, and submit to an accounting and settlement in the said court of the amount claimed to be due for the matters aforesaid; that bills of particulars of the amount of each and every of the said claims, except that of the said William A. Sinclair, were also served on the said defendant within fifteen days after service of the said last mentioned notices, and that the said notices that were served on the said clerk and on the said defendant were served before the commencement of this action.
    And I do further report, that I find that the serving of the said notices effected a lien, in each and every of the cases above stated, upon the lot number 49 Maiden Lane, in the city of New York, and the building on it, for the value of the labor and materials in the respective cases above mentioned, upon the lot of the defendant, number 49 Maiden Lane, in the city of New York, and the building thereon, to the extent of the right, title, and interest existing at the times of filing the said notices with the said clerk, or the said defendant therein; that the said liens were imposed and held to secure the payment of the sums of money, claimed to be due from the aforesaid Joseph D. Purss to the aforesaid persons who gave such notices as aforesaid.
    And I do further report, that, in allowing the sum hereinafter reported to be due to the plaintiffs, any claim under the liens above mentioned, has not been considered, and that no deduction has been made therefor.

    And I do further report, that I find that the defendant is entitled to an allowance of one hundred and forty-seven dollars and sixty-six cents, by way of recoupment or counter-claim, which sum I have deducted from the amount hereinafter reported to be due to the plaintiff.
    And I do further report, that I find that there is due and owing to the said plaintiffs from the said defendant, at the date of this report, the sum of four thousand five hundred and thirty-one dollars and eighty-one cents.
    March 31st, 1853. • William Inglis.

      C. Haring, for the defendant,
    moved for the reversal of the judgment, and argued as follows.
    I. The plaintiffs, as assignees of Purss (the contractor), take subject to all equitable as well as legal defences which can be urged against the assignor (Graves v. Woodbury, 4 Hill, 561; 1 Cowen, 56, 206).
    II. The plaintiffs, as assignees, &c., were not entitled to demand the notes, or the payment of the $4,400, alleged to be due, until the architect’s certificate was obtained, 2d March, 1852 ; previous to which time, between the 11th September, 1851, and 18th February, 1852, liens were perfected under the act of 11th July, 1851, amounting to $8,247.96, for work and materials furnished by sub-contractors, under agreements with Purss, the contractor, for the building of the defendant, 49 Maiden Lane. The rights of the plaintiffs were, therefore, subject to those liens; and the liens being for a far greater amount than the claim of the plaintiffs, no judgment can be rendered for the plaintiffs until those liens are discharged.
    ITT. The effect of the law for the better security of mechanics, &c., in the city of New York, passed July 11th, 1851, is to substitute the sub-contractor in place of the contractor, to the extent of the amount due the sub-contractor, and to render the owner absolutely liable to him for such amount. See case of Sullivan v. Brewster & Gale, N. Y. Common Pleas, General Term, May, 1853 (8 How. Pr. Rep. 209), where held, that “ The operation of the lien law is to transfer to the snb-contractor, so much of the contractor’s claim against the owner as would be sufficient to pay the debt of the contractor to his subcontractor.” Under the above decision, the whole amount due by the defendants is transferred to the lien holder. In Lehretter v, Koffman (Com. Pleas, January, 1852), a suit was brought by an owner, to obtain injunction restraining a lien holder from enforcing his lien, on the ground that prior liens would absorb the whole amount due, held, “ If there are prior liens sufficient to absorb the funds remaining in the hands of the owner, it is a good defence to a suit on a subsequent lien.”
    IV. The report of the referee shows that a valid lien was effected upon the building of the defendant, for work done, under an agreement with Purss. The holders of those liens are to be paid their claims at all events, the law having been passed for the especial protection of sub-contractors; should the judgment, in favor of the plaintiff, be allowed to stand, the defendant will be compelled to pay at least double the amount due by him. The owner cannot be compelled to pay on account of the building, any greater sum than the price stipulated to be paid by the contract between himself and the contractor (Doughty v. Devlin, General Term, Com. Pleas).
    V. The referee states, that in allowing the sum reported in favor of the plaintiff, any claims under the liens mentioned have not been considered. It is submitted that he has erred in his decision. 1. In omitting to consider the defence interposed by the defendant, founded on the liens, and state his conclusion of law thereon. 2. In reporting in favor of the plaintiff the sum of $4,531.81 for erection of the building, 49 Maiden Lane, while there were valid and subsisting liens against said building, for work and materials furnished, under agreements with the contractor, to the amount of $8,247.96.
    VI. The judgment entered in favor of the plaintiff should be reversed, or all proceedings under it suspended, until the liens on said building are discharged.

      E. Sandford, for plaintiff.
   By the Court. Bosworth, J.

The facts found by the referee, in relation to the service of notices in writing, upon the Clerk of the City and. County of New York, by Horace Beals, Charles H. O’Hara, William Joyce, and others, and the entry by the clerk of the particulars of such notices in the “ Lien Docket,” in relation to the service of notices upon the defendant, requiring him to appear in the Common Pleas, and submit to an accounting; and in relation to the service on the defendant of bills of the particulars of each of said claims, created a lien on the defendant’s lot and building, in favor of bach claimant, for such sum as it might be adjudged was due to him on such claim. The referee does not find, that either claimant had performed the labor or furnished the materials specified in his notice, or that anything was owing to either on account of such claim.

The question is, what is the effect of serving papers and taking proceedings proper in form to create a lien for securing the payment of a claim, the existence of which is not established, but which may or may not be established. Does it absolutely bar an action in favor of the original contractor ? If so, on what principle ? The referee has not found that these claims are valid, or what, if anything, is due upon them. For . aught that appears, the whole amount, or no part of the amount of them, or of any one of them, may be adjudged to be owing to the claimant.

Unless something is due on them, the plaintiffs should recover the balance owing by the defendant. If something, but less than the amount of such balance is due on them, they are entitled to the difference, at all events.

We do not see any objection, in a case like the present, to the defendant’s bringing a cross action and making all the claimants parties, so as to conclude them as to the amount owing -by the defendant on his contract, by the judgment in this action, and to obtaining a judgment enjoining the collection of that amount by the plaintiffs, until the decision upon the claims, and directing the payment of the amount, or so much of it as might be necessary to satisfy the claims as they should be established, and according to the rights of the claimants, and the surplus, if any, to the plaintiffs.

Neither is it perceived, that any successful resistance could have been made, to an application by the defendant, after the amount of his liability had been determined by the referee, for leave to pay the amount into court, to abide the decision upon the claims made, and for a stay of all further proceedings in this action in the mean time.

It is entirely obvious, that there are adequate remedies by which the defendant can shield himself against the hazard of being compelled to pay the same debt twice. It is also very clear, that the fact of a claim having been made against him, which would, if established and satisfied, be a bar to the action, is no bar until it is established, even if it would be. before satisfaction.

Would the recovery of a judgment against him, by the claimants, without satisfaction of it, extinguish all liability on his part to the plaintiffs? Would the recovery of a judgment against him by the claimants, without satisfaction of it, preclude them from recovering the amount due them, from the original contractor, who employed them to do the work, and furnish the materials, for which such judgment was rendered ?

If the defendant is discharged from all liability to the plaintiffs, by the effect and force of the recovery of a judgment against him, without payment of it, then such recovery without payment ought to have the effect of discharging the original contractor from all liability to such claimants.

It is difficult to find anything in this act to justify the conclusion, that the creation of a lien upon the lot of the owner, and the recovery of a judgment against him, by the mechanics, for the amount owing to them, in effect, and in judgment of law, extinguishes the liability of the original contractor to them, for the services rendered or materials furnished on his employment, and promise to pay for them, irrespective of the question whether anything is, or can be realized, on such judgment. The creation of a lien and establishment of a claim by a judgment against the owner, secures to the claimant the responsibility of the owner, the security which the extent of his interest in the building and lot at the time of creating the lien may furnish, and, perhaps, the further remedy of an execution on the judgment, against his other property real and personal (§§ 7 and 8, Laws of 1851, p. 955.)

But does it extinguish, the liability of the original contractor to the claimant ? Is it anything more than a statutory security for the satisfaction of such liability ? „

If it does not extinguish such liability, then, on what principle can a recovery by the claimant against the owner, without payment, extinguish the owner’s liability to the original contractor ?

Whatever may be the proper answer to these questions, we ■ are clear in the opinion, that the facts found by the referee do not constitute a bar to the action. It necessarily follows that the judgment appealed from must be affirmed, and the defendant must resort to other proceedings to stay the enforcing of the judgment by the plaintiffs, until the determination of the claims mentioned in the referee’s report.