an insolvent owner or contractor, and this section, in connection with sections twenty-five and fiftysix thereof, provides for the priority of day laborers over contractors and subcontractors, irrespective of when their liens are filed, and likewise of a material man over such contractors or subcontractors.22 In New York, too, laborers and material men are given priority, among themselves, according to the date of the filing of their respective liens. The priority of lienors in other jurisdictions will naturally vary, to a greater or less extent, in accordance with the peculiar doctrines or conditions which there exist, and it will not be amiss to emphasize again the fact that, in all instances, the decisions on the various phases of the lien law are based upon the special provisions of the particular statutes involved, and that only by a careful examination of the statutes in force when and where a case arises can the exact rights of the parties be properly weighed and determined. 22 See Herman et al. v. City of New York, 130 N. Y. A. D. 531; Hedden Const. Co. v. Proctor, etc., Co., 62 Misc. (N. CHAPTER I THE ARCHITECT AND THE CONTRACTOR § 114. Rights and Liabilities in General.-The relations in general of the architect and the contractor, and their mutual rights and liabilities, closely inter-related as they are with the other phases of the subject, have been already considered in some detail. It is proper to note again, however, that while the architect's primary duty is to the owner, his client, he must nevertheless, and especially in his capacity as arbitrator, be careful that his decisions and the course pursued by him are consistent with fair dealing to the contractor as well. In the matter of the issuance of certificates he should exercise special care, for in this detail the builder is primarily within the power of the architect, under the provisions of the ordinary building contract of to-day. For an improper refusal by the architect to issue a certificate, the issuance of which is essential to the proper protection and enforcement of the rights of the builder, the latter may, it has been indicated by the British courts, hold the architect liable for the damages sustained by reason of his refusal.1 1 Ludbrook v. Barrett, 46 L. J. C. P. 708. § 115. Right to Plans.-With respect to the plans, the builder is not in a position to make the claim of ownership which can be set up by the owner, but at the same time, it seems that there is recognized a right in the builder to use and to hold the plans in his possession, during the time that the building is in course of erection. The courts have gone so far, in one jurisdiction at least, as to hold, under this doctrine, that the builder may maintain an action in trespass against the architect, where the latter has taken the plans from the possession of the builder, without his consent and prior to the completion of the work; and that the taking of the plans by the architect under these circumstances, if done secretly and with felonious intent to convert them to the architect's own uses, and to deprive the builder of the use of them, is ground for a prosecution for larceny. It will be observed that in the case last cited, the decision on the point of larceny is predicated on the assumption that the plans are taken with felonious intent, which element being assumed or shown naturally leads to the conclusion reached, but the case is interesting nevertheless as illustrative of the fact that care should be exercised not to assume too boldly an ownership of or control over the plans, under any and all circumstances. 2 Lunsford v. Dietrich, 86 Ala. 250. |