Paquette Bros. v. Nazarian

TANNER, P. J.

This is a mechanic’s lien brought by a sub-contractor to recover for plastering done. The de-fence offered is that the work was very badly done and the walls very badly cracked.

We find, however, from the evidence that this was due to the failure of the main contractor to properly protect the work while in process by screening, it being the duty of the main contractor so to do.

The defendant cites authorities under what is called the New York rule, which makes the owner liable only for what he owes the contractor and, therefore, permits a recoupment against the contractor. These cases are not applicable, however, to cases arising under our statutes, which follow what is called the Pennsylvania rule and give a sub-contractor a direct lien regai’cuess of the relation between the owner and the main contractor.

While the owner may have a claim for recoupment against the main contractor, we think he has no such claim against the sub-contractor for the fault of the main contractor.

p4r Petitioner: James E. Brennan. For Respondent: L. Pouliot, Jr,

Bowen vs. Phinney, 162 Mass. 593.

We therefore give decision for the petitioner for the amount of his claim $309.40.