By the Gomt
Lafayette Emmett, Ch. J.This case comes *289to us by way of Appeal from an order of tbe Judge of the 2d Judicial District denying a motion for a new trial. The action was instituted for the purpose of securing a lien on certain real property described in the complaint under the Lien Law of A. D. 1855. The amended complaint alleges that the Plaintiffs furnished certain lumber and did certain hauling for the Defendants, at their special instance and request, and that said lumber was used by the Defendants in and about the erection of a building on said premises. It admits, or rather avers, that the Defendants have paid a portion of the demand therefor and asks judgment for the balance, and that the same may be adjudged a lien on the interest of the Defendants in said building and premises.
The answer is as to the original complaint, which is not found with the papers before us, and it contains many denials not responsive to the complaint as amended; but, by the stipulation of parties, it was agreed that this answer should stand as the answer to the amended complaint, and that all matters in the amended complaint and answer should be considered at issue. The answer is made up of denials; and, rejecting such as have no reference to the allegations of the amended complaint, it will be found that it takes issue upon every material allegation except that relating to the interest of the Defendants in the premises described.
After thus making up the issues, the case was referred to a sole referee, to determine and report upon. The Referee reported in favor of the Plaintiffs, and the Defendants filed exceptions and moved for a new trial, which motion was denied. The case made brings up the Report, and the testimony, and proofs on which the same is founded.
The Report, so far as the facts found are concerned, is, in our opinion, fully sustained by the evidence; but the facts found clearly show that the Plaintiffs were sub-contractors, and, as such, had furnished the lumber and done the hauling in the complaint mentioned — not for the Defendants, nor at their instance or request, but at the instance and request of the firm of Smith & Tetans, who were contractors for the building of the house for the Defendants. Such being the ease, the remedy of the Plaintiffs was by action against Smith & Tetansj *290the real debtors, and then, by scire facias against the owners. This course is clearly marked out by the fifteenth section of the statute referred to, and we hold that the directions of the statute should be strictly pursued.
Where there is an intermediate contractor to whom the credit is given, it is all-important that he should be the party to an action for materials furnished him, as he alone can be presumed to know about the correctness of the claim made, or the proper defence to make, should any exist. The owner of the property may know nothing of either, and would not therefore be in a condition to defend his property against even an illegal demand. He may even have paid the contractor in full, according to the terms of the contract, before notice of any claim by a sub-contractor. Justice to the owner, therefore, requires that the sub-contractor should first exhaust his remedy against his immediate debtor, the contractor, before resorting to the owner and compelling him to pay, perhaps, a second time. Besides, a judgment against the owner in an action by the sub-contractor would not be conclusive on the intermediate contractor, and the owner would be driven to another action against him to recover the amount he has been obliged to pay, and might, in such action, recover less than the amount of the judgment against himself.
A judgment, howevei’, against the intermediate contractor for materials furnished would, no doubt, be conclusive as to the amount etc. against the owner, xxnless he could show fraud or collusion; and if the sub-contractor has given the notice, and filed his claim, as required by the statute, he can have no difficulty in securing a lien by sci/re facias.
It is, howevex’, contended that the Defendants are liable, upon a subsequent promise, to pay this claim, and that the alleged promise is not within the Statute of Frauds. Without considering the latter part of the proposition, it is sufficient, perhaps, to say that no such promise is declared on, or in issue in this case, nor is there such a promise found by the Repox't of the Referee. That part of the Report which it is insisted amounts to a finding of a subsequent promise is merely a detail of a conversation which took place between the Defend*291ants and the Agent of the Plaintiffs, and has no connection with any issue made by the pleadings.
Had the Plaintiffs relied upon a promise made by the Defendants to pay for the lumber furnished to the firm of Smith & Tetans, they should have so pleaded.
We hold that the Plaintiffs have mistaken their remedy, and are not entitled to a judgment upon the facts found. The order of the Judge, therefore, denying the motion for a new trial, must be reversed, with costs, and a new trial awarded.