of any offset which may be claimed to the same, within ten days thereafter, which shall be served in like manner. CHAP. VIII. case $6. In case such contractor, laborer, or person furnishing Provision materials, shall not appear and produce his claim, as speci- neglect. fied in sections four and five, he shall forever lose the benefit and be precluded of his said lien; and in case such owner shall not appear in pursuance of the requirements of the said sections, at the time and place specified in such notice, then bis default may be entered in the book of common rules of the said court of common pleas, or by the said justice's court, and thereupon a writ of inquiry and inquisition may issue to the sheriff of said county, in which such city or village may be situated, to be executed, or the amount of such claim shall be assessed by the said justice's court, as the case may be; and judgment shall be entered upon the same, and execution shall issue for the enforcement of the said claim so adjudicated and established, in the same manner as in cases upon judgments in such courts in actions of assumpsit. to be join $7. On the appearance of both parties in pursuance of Issue when the above requirements, issue shall be joined upon the claims ed." made, and notices of set-off served, and the same may be noticed for trial and put upon the calendar of said court by either party, and shall be governed, tried, and the judgment therein enforced in all respects in the same manner as upon issues joined and judgments rendered in actions of assumpsit in the said court. $8. Costs shall be allowed upon the same principles and Costs. by the same rules in such proceedings as they are now allowed by statute in an action of assumpsit, and shall form a part of the judgment recovered in the same. labor and $9. Any person performing such labor, or furnishing such Lien for materials in pursuance of any agreement made by him" with materials. the original contractor, with such owner, or his said agent," who shall have done the acts prescribed by the second section of this act, to create a lien therefor, shall have a lien for only such labor as shall be performed, and for only such materials as shall be furnished subsequently thereto. in writing $10. Any person performing such labor, or furnishing Statement such materials, as mentioned in the preceding section, in to be made. pursuance of any agreement made by him, "with the original, contractor, with such owner, or his said agent," within thirty days after such labor has been performed, or such materials have been furnished, and claiming to have a lien therefor by virtue of this act, shall produce and deliver to such owner, or his said agent, a statement in writing, signed by himself and the said contractor, specifying how much is due to such person for such labor done, or materials furnished, or in default of so doing shall take the necessary proceedings against such contractor, to procure an accounting and settlement of the amount due or owing for such labor or materials, which proceeding shall be conducted in all PART III be specified. respects as prescribed by, and be subject to all the provisions contained in sections four, five, six, seven and eight of this act; and in case such person shall fail to produce and deliver such statement, or take the necessary proceedings within the said period of thirty days, to compel such accounting and settlement between himself and such contractor, or shall fail to prosecute the proceedings so to be taken with effect, and without delay to a final judgment, he shall forever lose Amount to the benefit and be precluded of his said lien. The amount of any judgment which may be recovered by such person against such contractor, or the amount which, by their written statement, to be signed by them as aforesaid, shall be specified to be due to such person from such contractor, shall be paid by such owner, or his said agent, to such person; and when so paid shall be deemed to be a payment of such amount by the said owner, on the contract made with such owner, or his said agent. And if such owner, or his said agent, shall refuse or neglect to pay such sum, after being served with such statement, or a transcript of the docket of such judgment, for ten days after being requested so to do, the clerk of the county, on having filed with him a duplicate copy of said statement, with the affidavit of such person that it is a true copy thereof, and of the delivery thereof to such owner, as required by this section, or on having filed with him a transcript of the docket of such judgment, and an affidavit of a demand of the said owner, or his said agent, ten days prior thereto, of the amount thereof, and of his refusal or neglect to pay, may issue an execution in favor of such person against such owner, in form as upon a judgment recovered in assumpsit, on the day of the attaching of such lien, reciting that such execution is issued pursuant to the tenth section of this act, which execution shall be subject in all respects to the jurisdiction and control of the court of common pleas of said county to make such order in respect to the same as shall be just between the parties, according to their rights as defined and regulated by this act. For such execution the clerk shall be entitled to a fee of one dollar, which shall be collected under such execution, in addition to the amount therein directed to be collected thereby, and the fee prescribed by law for making such collection. Liens when barred. S11. Any person who shall furnish materials or perform labor in the erecting, altering or repairing any house or other building or appurtenances, may certify to the owner or his agent, at any time previous to or during the progress of the work, that such person will discharge the owner or his agent from any liability as to liens, and such certificate, executed by himself in presence of a subscribing witness, shall be conclusive upon such person in barring him from the benefit of a lien by virtue of this act. Is this act repealed by Laws of 1854, chapter 402, § 24? CHAP. VIII. CHAP. 235. AN ACT in relation to liens created by the several acts for the better security of mechanics and others erecting buildings and furnishing materials therefor. PASSED May 13, 1845. The People of the State of New York, represented in Senate and Assembly, do enact as follows: tion of common $1. The docket of liens and of judgments filed and docketed Jurisdic with the county clerk of any county, under chapters two hun- courts of dred and twenty, and three hundred and five of the Laws of pleas 1844, shall be subject to the control and jurisdiction of the court of common pleas in such county, in the same manner as judgments recovered in said court. CHAP. 402. AN ACT for the better security of mechanics and others PASSED April 17, 1854; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: which lien $1. Any person who shall hereafter perform any labor in Counties in erecting, altering or repairing any house, building, or the is to attach. appurtenances to any house or building in either of the counties mentioned in the title of this act, and every resident of either of said counties of Westchester, Oneida, Cortland, Broome, Putnam, Rockland, Orleans, Niagara, Livingston, Otsego, Lewis, Orange and Dutchess, who shall furnish any materials therefor, shall, on filing with the town clerk of the town in which the property is situated the notice prescribed by the fourth section of this act, have a lien for the value of such labor and materials upon such house or building and appurtenances, and upon the lot, parcel or farm of land upon which the same shall stand, to the extent of the right, title and interest of the owner of the property existing at the time of filing the said notice. 20 N. Y., 247; 19 N. Y., 234; 9 N. Y., 435; 11 B., 9; 4 E. D. S., 734; 725; 1 Du., 675; 17 How. P. R., 449; 7 How. P. R., 350; 6 Ab., [Most of the cases cited to this statute have arisen under local laws, but they establish principles applicable to this also.] By Laws of 1858, ch. 204, this act is made applicable to the whole state except New York and Erie counties. PART III. Labor per contractors. S2. Whenever the labor performed and materials furnished formed by shall be upon the credit of any contractor who shall have made a contract therefor with the owner of the property, or upon the credit of any sub-contractor, or the assignee of any contractor, the provisions of this act shall not oblige the owner of the property to pay for or on account of any labor performed, or materials furnished for such house, building or appurtenances, any greater sum or amount than the price stipulated and agreed to be paid therefor in and by said contract, except as in the next section provided. Collusion. Notice of filed with 13 N. Y., 70; 7 H., 525; 4 H., 193; 12 W., 373; 4 E. D. S., 727; 3 E D. S., 660; 2 E. D. S., 560, 693; 1 E. D. S., 625, 647, 652, 658, 692, 717. $ 3. If the owner of any building altered or repaired by contract shall pay to any person any money on such contract by collusion, for the purpose of avoiding the provisions of this act, or before the right of any claimant to file a notice of lien has expired, or in advance of the terms of any contract, and the amount still due the contractor or his assignee after such payment has been made, shall be insufficient to satisfy the demands made in conformity to the provisions of this act, the owner shall be liable to the amount that would have been due and owing to said contractor or his assignee at the time of the filing of the notice mentioned in the first section of this act, in the same manner as if no such payment had been made. 1 E. D. S., 687, 692. $ 4. Within thirty days after the performance and compleclaim to be tion of such labor, or the final furnishing of such materials, town clerk. the contractor, sub-contractor, laborer or persons furnishing materials, shall serve a notice in writing upon the town clerk of the town where the property is located, specifying the amount of the claim, and the person against whom the claim is made, the name of the owner of the building, and if in a city or village, the situation of the building by street and number, if the street be known. Lien docket The town clerk shall enter the particulars of such notice in a book, to be kept in his office, to be called the "Lien Docket," which shall be suitably ruled in columns, headed "claimants," "against whom claimed," "owners," "buildings," "amount_claimed," and the date of the filing of the notice, hour and minute, what proceedings have been had. The names of the owners and persons against whom the claims are made shall be entered in said book, in alphabetical order. A fee of ten cents shall be paid to said clerk on filing such lien, and no lien shall attach to said land, buildings or appurtenances, unless such notice be served and filed by said clerk; and said notice, when so filed, shall thereafter operate as an incumbrance upon said property. 20 N. Y., 247; 3 E. D. S., 621, 657, 666; 1 E. D. S., 654, 687; 4 Ab, 432, 472; 3 Ab., 475. CHAP. VIII. Proof of labor or $5. Any person performing labor, and every resident of said counties furnishing materials, in availing himself of the value of provisions of this act, shall, upon the trial or at the assess- materials. ment of damages, produce evidence to establish the value of such labor or materials, and that the same was performed or used by the said owner or his agent, original contractor or assignee of such contractor in the erection, altering or repairing of such house, building or appurtenances. 2 E. D. S., 662; 1 E. D. S., 668, 681, 722. labor and S6. Any contractor, sub-contractor, or laborer performing Action for any work, or assignee thereof, and any resident of said county, materials. furnishing any materials as above provided, may, after such labor has been performed, or materials furnished, and the service of the notice required by the first section of this act, bring an action in the supreme court in the county in which the property is situated, or in the county court of said county, when the amount exceeds fifty dollars, to enforce said lien, which said action shall be commenced by serving a notice containing a statement of the facts constituting the claim and the amount thereof on the owner of the property, or his agent, requiring the said owner to appear in person or by attorney within thirty days after such service, and answer the same, and serve a copy of such answer, together with a notice of any set-off that he may have on the claimant or his attorney; or in default thereof, that the claimant will take judgment against the said owner for the amount claimed to be due for the labor performed or the materials furnished, with interest thereon and costs; and for the purpose of more effectually transacting the business contemplated by this act, said supreme court and county court shall be deemed to be always open. 19 N. Y., 440; 29 B., 631; 2 E. D. S., 577; 1 E. D. S., 687, 699, 719; 17 notice of S7. Within thirty days after the service of said notice and Answer and bill of particulars, the defendant shall personally serve the set-off. claimant or his attorney with a copy of his answer and notice of set-off, if any he has, duly verified by the oath of the owner, his agent or contractor, to the effect that the same is in all respects true, or his default may be entered and judgment taken and enforced as hereinafter provided. 1 E. D. S., 691; How. P. R., 199. when com justice's S8. When the amount of the lien claimed is for one hun- Action, dred dollars or under, the claimant may commence such action menced in in a justice's court of the town in which the building is court. located, by serving a notice upon the owner or his agent anywhere within this state, requiring such owner to appear before a justice of the town in which the property is situated, which said notice shall contain a statement of the facts constituting the claim and the amount thereof, and shall require such owner to appear before said justice in person or by attorney at a time certain, not less than thirty days after such service, |