The opinion of the court was delivered by

On the facts sent up in the postea the plaintiffs contend that they are entitled to have judgment entered in their favor for the sum of $530, by force of the third section of the Mechanics’ Lien law. That section provides that whenever any contractor shall, upon demand, refuse to pay any person who shall have furnished materials used in the erection of any house, or other building, the money due him, it shall be the duty of such materialman to give notice, in writing, to the owner of such building of such refusal, and of the amount due to him and so demanded, and the owner of such building shall thereupon be authorized to retain the amount so due and claimed by any such materialman out of the *49amount owing by him to such contractor for labor or materials used in the erection of such building, and, on being satisfied of the correctness of said demand, shall pay the same, and the receipt of such materialman for the same shall entitle such owner to an allowance therefor in the settlement of accounts between him and such contractor.

The right of the materialman to recover from the owner after the service of the stop notice depends, as will be seen from the words of the' statute, upon whether he has in his hands, at the time of such service, or afterward, moneys owing by him to the contractor for labor or material used in the erection of the building. That the defendants in the present case had such moneys in their hands, to the extent of $30, when plaintiffs served their notice upon them, is one of the findings set out in the postea, and for that amount, at least, the plaintiffs are, plainly, entitled to judgment. The controversy in the ease is over the sum of $500, retained by the defendants, upon their final settlement with Nicholas, the contractor, for the purpose of paying Lyman the moneys due him, and which the defendants were directed to pay by the order of June 24th, 1899.

By the service of their stop notice the plaintiffs took the place of the contractor, to the extent of their claim; they acquired no higher or other rights to the fund in question than the latter had. “The test is,” as was said by this court, in Reeve v. Elmendorf, 9 Vroom 125, 130,“whether a suit will lie by the contractor against the owner. If it will not, the owner is not liable to a suit by the materialman.” Applying this test it becomes plain that the plaintiffs cannot sustain their action, so far as the $500 fund is concerned. By the order of June 24th, supplemented by the action of the defendants and the contractor, upon the final settlement of their account on August 28th, the latter became diverted of all right in or title to said fund, and the defendants thereafter held it subject to the call of Lyman. Brill v. Tuttle, 81 N. Y. 454.

On the facts found plaintiffs are entitled to judgment for the sum of $30.