Foster v. Poillon , 1 Abb. Pr. 321 ( 1855 )

Daly, J.

You are required to show that you have a claim against the owner. If you made no contract with him, it must appear that you made a contract with the person who contracted with him to erect the building, and that that contract was in conformity with the contract with the owner, or you have no lien and no cause of action against the owner.

Waite.—We made our contract directly with the owner.

Daly, J.

(Orally).—Issue is to be joined in the language of the statute, upon the cla/im made—that is, the claim made in the notice to appear and submit to the accounting. The plaintiff claims, by virtue of his contract, to enforce a lien upon the building, and the peculiar nature of that claim should appear by the complaint. This is essential to the judgment which he seeks, or rather to the right claimed by him, to enforce his lien by execution against the specific building.'

Plaintiff had liberty to amend.