
    Jules Bruchard et al., App’lts, v. The Mayor, etc., of New York, Resp’t
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 13, 1891.)
    
    Pleading—Lien on contbact with new yobk city.
    The complaint in an action to foreclose a lien upon moneys to grow due on a contract made with the city of New York must set forth the terms of the contract between the contractor and the city and the fact of performance, so that it can be seen that any amount was due thereon at the commencement of the action.
    Appeal from interlocutory judgment sustaining demurrer to complaint
    The object of this suit is to foreclose a lien alleged to have been acquired by the plaintiffs against certain moneys alleged to be due from the city of New York to Messrs. O’Brien & Clark, contractors, for building certain sections of the new aqueduct
    
      L. Laflin Kellogg, for app’lts ; James C. Carter, for resp’t
   Ingraham, J.

To entitle plaintiffs to recover in this action they must allege the making of the contract between defendant and the original contractors; that the plaintiff, as laborer, mechanic, merchant or trader, in pursuance of or in conformity with the terms of such contract, performed labor or furnished materials towards the performance or completion of such contract, and that he has duly filed the notice prescribed by § 1825 of the consolidation act.

Where such a contract is made, such services performed or materials furnished and such notice filed, plaintiff may commence an action to enforce his claim against the amount in the hands of the city department due to the original contractor, and in that action the court must determine the validity of the lien, the amount due from the debtor to the contractor under his contract and from the contractor to the respective claimants.

The fact of the making of the contract and the fact of the performance of the terms of the contract by the contractor must be alleged and proved before the court can determine how much is due to the contractor from the city.

The provision that where money is to grow due a lien upon such money attaches upon the filing of the notice before it is due, does not justify an action to recover that money before according to the terms of the contract it is actually due and payable by the city to the contractor.

Considered in connection with the statute creating this lien, we think the complaint is fatally defective, in that it does not allege the terms of the contract between the contractor and the city, so that it can be seen that any amount was at the time of the commencement of the action due from the city to the original contractor. The contract itself is not set forth in the complaint, nor is its substance alleged in the complaint; all that the complaint alleges is that there was a contract made between O’Brien & Clark and the city to build section eight of the new aqueduct, and that thereupon O’Brien & Clark did enter upon the performance of said work, and that the same is now in process of completion or completed.

From this allegation it is impossible to say that there is any money due from the city to O’Brien & Clark, or that there ever will be any money due from the city to O’Brien & Clark. We think to sustain this action the complaint should set forth the contract as .it would be required to be set forth in an action brought by the original contractor against the city. In other words, the complaint must show that a cause of action existed at the time of the commencement of this action in favor of the contractor and against the city to recover a sum of money due under the contract, upon which sum of money the plaintiff acquired a lien by complying with these provisions of the Consolidation Act.

The plaintiff has no cause of action against the city until he alleges and proves the existence of the indebtedness by the city to the original contractor upon which he has a lien; and the complaint in this action fails to allege any facts from which the existence of such indebtedness of the city to O’Brien & Clark could be inferred.

Judgment affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.  