BRODERICK a. BOYLE

BRODERICK a. BOYLE. New York Common Pleas; Special Term, February, 1855. Mechanics’ Lien.—Requisites of Complaint. The complaint of a sub-contractor who seeks to enforce a mechanic’s lien for labor or materials, should show that his own contract with the contractor was made in conformity with the terms of the contractor’s contract with the owner. Where it fails to show this, plaintiff will be required on motion, to make his complaint more definite and certain in this respect. Motion that plaintiff make his complaint more definite and certain. The complaint in this action was filed to enforce a lien for materials furnished. The complaint stated that the materials were furnished by plaintiff in pursuance of a contract made by him with a contractor with the owner; but it did not state whether or not that contract was in conformity with the contract between the contractor and the owner. See also Quin a. Mc Oliff, post 322. [MAJORITY — Daly, J.] Daly, J. (Orally).—The law -gives a lien in two cases:— 1, where a contract is made with the owner. 2, where a contract is made with the contractor with the owner, commonly • called the first contractor, and is in conformity with the contract made with the owner. The first contractor might put up a different building or structure than that provided for by the contract, .and the party who performed work or furnished materials towards the erection of such a structure, would have no lien against the owner of the land. A lien against the owner exists only when the work performed or the materials furnished by the sub-contractor is contemplated by the contract between the owner and the first contractor. In the language of the statute, the sub-contractor’s contract with the first contractor must be in conformity with the original contract made by the owner. The complaint must be amended. In its present form it does not set forth a sufficient cause of action.