Majority
p. 540Maxey v. Larkin. General Term, December, 1854.
Headnote
Effecting a lien upon a building, under the act of 1851, by way of security for work done or materials furnished, in no wise impairs the right to proceed by an ordinary action to recover from the immediate employer the amount due therefor,[1]Where a laborer, having effected a lien upon the building, sues the contractor in an ordinary action, and proves that he was employed, directed as to his work, and was partly paid by the contractor, proof of his declarations that he looked to the owner, and not to the defendant, for his pay, is insufficient to relieve the latter from liability.
Action in one of the district courts, by a laborer upon a building, against a contractor employed by the owner in its erection. The plaintiff filed a notice of claim and created a lien upon the building. Afterwards, without proceeding to foreclose the lien, he sued the contractor in the ordinary form for a balance due, and recovered judgment, from which an appeal was taken.
There is no ground for this appeal. The questions were purely of fact within the province of the justice to decide, and upon the evidence he has decided correctly. The evidence shows that the plaintiff, who claims from the defendant for work and labor, was employed by the defendant, was directed by him as to the work, and was partly paid by him.
The evidence given to impeach the plaintiff’s witness was insufficient in the opinion of the justice.
The only evidence to the contrary of the plaintiff’s claim was the declaration of the plaintiff that he looked to a third party, and not to the defendant for his pay,; but with the explanation as to the lien on the property claimed by the plain
p. 541
tiff, it rather shows the defendant to be a contractor for Bradshaw, who was the owner. Effecting a lien upon the building by way of security in no wise affects or impairs the plaintiff’s right to proceed against his employer and recover against him the amount due.
Judgment affirmed.