
    John Quinn, claimant, v. The Mayor, Aldermen and Commonalty of the City of New York, owners, and Patrick McOliff, contractor.
    A complaint, filed by a Bub-contractor, under the mechanics’ lien law of 1851 must contain an allegation, that the labor or materials were furnished in conformity with the contract between the owner and the original contractor. .
    Accordingly, where the plaintiff moved for an injunction to restrain the corporation of the city of New York from tearing down, during the litigation, the building whereon the alleged lien was claimed, and whereof they were the owners; the motion was denied, on the ground that the complaint—'being filed by a sub-contractor, to enforce a lien for the value of labor performed under an agreement with the original contractor—did not show that such labor conformed to the owner’s contract for the repair of the premises in question.
    Special Term,
    February, 1855.
    Before Daly, J.
    The defendant, McOliff, was a contractor with the corporation of the city of New York for the repair of a public building owned by the latter.
    The plaintiff, Quinn, under the employment of McOliff', performed labor in repairing the premises in question, and filed with the county clerk, for the purpose of acquiring a lien thereon for the value of his services, the notice of claim prescribed in the sixth section of the act of 1851, “for the better security of mechanics and others.”
    The notice, provided in the fourth section, to appear and submit to an accounting, having been served upon both defendants, the corporation appeared by attorney, but McOliff made default. The usual order for a joinder of issues was entered, and the plaintiff filed his complaint, wherein he averred the performance of his labor in accordance with a ' contract of employment made with him by McOliff. There was no allegation that such labor conformed to any contract between McOliff and the corporation.
    The cause now came before the court, upon an application for an injunction to restrain the defendants from tearing down the building whereon the lien existed. Notice of the motion was served, by an order to show cause, upon both of the defendants, and was founded upon the complaint and upon affidavits that the plaintiffs were apprehensive of a design to destroy the building, whereby the efficiency of the lien would be impaired.
    
      James M. Sweeny and Rufus F. Andrews, for the plaintiff.
    
      Robert J. Dillon, counsel to the corporation, for the Mayor, &e.
    
      Andrew C. Morris, for the defendant,
    McOliff, argued against the motion, as follows:
    The order to show cause why an injunction should not be granted, was served upon McOliff. The plaintiff seeks to restrain him, as well as the corporation, and he is entitled to appear at this stage of the proceedings, to oppose the application, although he is in default in failing to appear on the return of the notice to account and join issue. The plaintiff is not entitled to an injunction, unless it appears by his complaint that he is entitled to the relief demanded. (Code, § 219.) His complaint shows no cause of action. It merely states that he performed work in pursuance of a contract with McOliff. This is not enough to give him a lien.
   Daly, J.

The corporation being the owner and McOliff the contractor, it should appear by the complaint that the work was performed and that the materials were furnished by the plaintiff to McOliff, in conformity with the terms of the contract made by McOliff with the owner, the corporation.

This was essential to the right of lien.

The complaint contains no such averment, nor does that fact appear even by the notice filed with the county clerk. No right of action was shown in the complaint, and no injunction can be granted.

Motion for an injunction denied.  