Dole agt. Fellows. pressly retained by the provisions of the Code which has been quoted. It may also be added that the practice before the code, required the application to be made upon a petition, and may be regarded as continued by section 469. The 22d section of the statute of 1830, before cited, imposed upon the court the duty of prescribing by general rules, the cases in which discovery might be compelled, and it would seem that the case must be one embraced in these general rules, in order to justify an order for discovery. Accordingly the late Supreme Court provided by rule, that applications might be made, 1. By a plaintiff to compel a defendant to discover papers and documents necessary to enable him to declare or answer any pleading of the defendant. 2. By the defendant, to compel the plaintiff to discover papers and documents necessary to enable him to answer any pleading of the plaintiff. 3. By either party, after pleading, to compel a discovery of any papers or documents on which the action or defence was founded; and 4. By either party after issue, for a discovery of books, papers or documents, necessary to enable the party applying to prepare for the trial of the cause. The contents of the petition and form of the affidavit of verification, were also prescribed (Rules 28, 29 of 1845). The same rules were adopted, without alteration, by the Supreme Court in 1847 (Rules 27 and 28). In the revision of 1849, the third and fourth subdivisions of rule 27 (now rule 8), were, for some cause not apparent, omitted; so that rule 8, as it now stands, embraces in express terms, only those cases in which discovery is necessary to enable the parties to frame their pleadings. What may be the effect of this omission, assuming that section 22, of the Revised Statutes, is applicable to the present practice, I do not now propose to inquire. But I refer to the rules to show that when they contemplate a discovery, they imply that it must be upon petition. Rule 8, which prescribes the cases in which discovery may be sought, says that the application may be made "in the manner provided by law." Rule 9. provides what shall be stated in the petition, and the form of the affidavit, by which it is verified. Warner agt. The Hudson River Rail Road Company. Neither of these expressly directs as to the mode of the application, but that the court understood it to be prescribed by law, and that it must be by petition is too plainly indicated by their language to leave any room for doubt on the subject. The 8th rule, it is true, does not expressly include cases in which the discovery is sought in order to prepare for trial, but the form of the affidavit prescribed by the 9th rule for verifying the petition, does embrace this class. While this shows that the rules were hastily and perhaps inconsiderately framed and adopted, it at the same time shows that the court did not contemplate the absurd practice of requiring a petition when the discovery was sought for one purpose and dispensing with it, when sought for another. I do not feel called upon to show that the proceeding by petition, has any advantage over one by affidavit. If the statutes or rules indicate a particular course of practice, it is my duty to preserve it, although I may not perceive its utility. These, in my opinion, plainly prescribe the practice to be followed in cases like this, and the motion is for this reason denied without prejudice to a new application upon petition. 5 How. 454-Contra, 9 How. 217. SUPREME COURT. WARNER agt. THE HUDSON RIVER RAIL ROAD COMPANY. The Hudson River Rail Road Company, under their charter, and to the extent therein specified, are directly liable for all sums due to "laborers" upon their work, in all cases of non payment by the contractors. And the term "laborers" includes not only those who personally perform labor, but all who do so by their servants and agents; also all superintendents over others engaged in actual labor upon the road. Columbia Circuit, January 1851. The plaintiff claimed to recover $89.25, for 293 days labor, performed by the plaintiff with his team, on section 85 of the defendants' rail road, between the first day of August and the twelfth day of September 1850. The work was alleged to have been performed under one of the de Warner agt. The Hudson River Rail Road Company. fendants' contractors, and that on the 20th of September the notice required by the 5th section of the act amending the defendants' charter (Sess. Laws 1850 p. 14) was duly served. The plaintiff also alleged that the defendants had, in like manner, become indebted to Henry A. Best in the sum of $55.50 for eighteen and a half days labor performed upon the defendants' road, under a contractor, between the 15th of August and the 12th of September 1850. This debt had been assigned by Best to the plaintiff. The work was alleged to have been performed by Best with his servant, horses and team. The requisite notice was given on the 19th of September. The plaintiff also alleged that the defendants were indebted to one William H. Warner in the sum of $40-35, for thirty days labor performed by him between the first of August and the 12th of September, of which due notice had been given. This demand had also been assigned to the plaintiff. It was admitted upon the trial that William H. Warner had been employed by the contractor as an overseer. The facts above stated were also admitted, except that by consent of counsel, the amount of the several claims is to be adjusted after the decision of the legal questions presented in the case. THEODORE MILLER, for Plaintiff. C. L. MONELL, for Defendants. HARRIS, Justice.-I regard the statute under whien this action. is brought, as highly remedial in its character. The legislature, aware of the condition and habits of that class of persons usually engaged in the construction of public works, have sought to protect them against the fraud or insolvency of their immediate employers. The purpose was benign, and the act should be liberally construed. The important terms used in the act are, "contractors" and "laborers." By the first, I think, we are to understand all such persons as assume to perform a specified portion of the work; and that, too, whether such persons have contracted with the defendants; or with other persons who have contracted with the Warner agt. The Hudson River Rail Road Company. defendants. In other words, I think the word "contractors," as used in the act, is to be understood to embrace all who employ "laborers" in the construction of the work, whether they be original or sub-contractors. So too, I think, the word "laborers". in contradistinction to the word "contractors" is intended to include such persons as, upon the employment of contractors, actually engage in the construction of the work. This, then, was the purpose of the legislature. It was intended that the defendants should see to it, that, at least to the extent specified in the act, those who actually performed their work, and not the contractors, upon whose employment it had been perfomed, should be paid for it. The language of the section containing this provision, though not very perspicuous, is sufficiently indicative of this intention. The defendants are, to the extent specified, to be liable for the payment of all sums due to "laborers" "in all cases of non payment by the contractors." Whenever any contractor employing laborers upon the defendants' work is indebted to such laborers, the latter, by pursuing the course prescribed, may, to the extent specified, make the defendants liable for their debt. The application of the statute, thus construed, to the case in hand, would sustain the plaintiff's right to recover upon all the claims stated in the complaint. Whether the laborer (by which term, as we have seen, is to be understood the man who performs the work upon the employment of another who has engaged that it should be performed), whether he performs the work with his own hands, or with the hands of another man; whether he uses his spade and wheelbarrow, or his horses and wagon; whether he perform the work in person, or by his servant, he is equally a laborer within the intent and spirit of the statute, and entitled to its benefit. And so too, in whatever capacity he is employed. He who is employed to superintend others who are engaged in the actual labor of constructing the road, is as much a laborer, within the meaning of the statute, as those whom he superintends. The counsel for the defendants relies upon the case of Wood vs. Donaldson (17 Wend. 550), and the same case in error (22 Wend. 395), to sustain the position that the defendants are not Warner agt. The Hudson River Rail Road Company. liable for debts due to laborers employed by sub-contractors. But to me the analogy between that case and the one under consideration, seems very slight. That was a case arising under the New York lien law. The remedy which that law provided was a remedy between debtor and creditor merely. It made the debts of certain creditors' privileged debts, and provided for their payment out of a fund belonging to the debtor. The very principle upon which that law was founded excluded sub-contractors from its operation. The principle was, that the moneys due from the owner of the building to the person with whom he had contracted should be paid to certain creditors of such persons, upon their application in the manner prescribed. It was not intended that the owner should, in any case, incur any new liability, or, in any event, pay more than he owed. The sole object of the law was to enable the creditor of the party to whom the owner of the building was indebted, to obtain payment out of that debt in certain cases. But here a liability is created by the statute, without reference to any indebtedness of the defendants to any one. It is enough that labor has been performed upon their road, and that the laborer has not been paid. The legislature, no doubt, supposed that when such a liability was imposed for the benefit of the "operatives" upon their road, the defendants would, as well they might, provide for their own indemnity in the contracts they should make for the construction of their work. But whether indemnified or not, they are alike liable, and that liability extends to all debts for labor actually performed in the construction of their road, to the extent limited in the act, when such debts are due from any person who has contracted for the performance of the work, and upon whose-employment the labor has been performed Judgment must be rendered for the plaintiff for the amount to which he is entitled upon this construction of the statute. Three other actions against the same defendants were tried at the same time, each involving one or more of the same questions. Each of these cases are disposed of by this decision |