
    Joseph Shulman, Respondent, v. Victor L. Maison et al., Appellants.
    Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of Eew York, borough of Manhattan, first district.
    C. N. Ironside, for appellants.
    Bela D. Eisler, for respondent.
   Per Curiam.

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. Eo 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 to 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. ,

Present: Beekmah, P. J., Gildebsleeve and Giegebich, JJ.

Judgment reversed and new trial ordored, with costs to appellants to abide event.  