p. 1009(Supreme Court, Appellate Term.Headnote
Mechanic’s Lien—Liability oe Owner.The owner of a building is not liable to a subcontractor on the foreclosure of a mechanic’s lien filed by him in excess of the amount due the principal contractor at the time the lien was filed, in the absence of a promise by the owner to pay the subcontractor’s claim.
Appeal from municipal court, borough of Manhattan, First district.
Action by Joseph Shulman against Victor L. Maison and others to foreclose a mechanic’s lien. From a judgment in favor of plaintiff, defendants appeal.
Argued before BEEKMAN, P. J., and G-ILDEBSLEEVE and GIEGrEBICH, JJ.O. ¡N. Ironside, for appellants.
Bela D. Eisler, for respondent.
We think that the judgment in this case should be reversed, and a new trial ordered. As the written complaint in the case discloses, the action is strictly one for the foreclosure of a mechanic’s lien. ¡No claim is made in the complaint against the defendant Maison, who was the owner, based upon any promise on his part to pay the amount claimed by the plaintiff, although evidence was admitted by the justice tending to show that such a promise had been made. The plaintiff must therefore rely for his recovery solely upon the agreement that was made between himself and Cornelisse, who was the principal contractor, and he cannot recover more than was due from the owner
p. 1010to such contractor at the time that the lien was filed. As far as the evidence in the case disclosed anything upon the subject, it would seem, to be plain that at that time there was not over $30 so due. The-justice, however, has awarded judgment in favor of the plaintiff for twice that sum. This was error which is fatal to the judgment, making a new trial necessary.
Judgment reversed, and a new trial ordered, with costs to the appellants to abide the event.