The plaintiff and the defendant Siffing Company are domestic corporations. On September 7, 1909, the defendant Siffing Company agreed by written contract to construct for the defendant Stern a dwelling house on her premises in the city of Rochester for $6,252.50.
The plaintiff, in pursuance of a verbal agreement with the contractor, sold and delivered materials which were used in constructing the dwelling house. On the 6th day of November, 1909, there was a balance due the plaintiff of $547.30, and a notice of lien on that day was duly filed in the clerk’s office of Monroe county, and on the tenth day of November a copy was served on the owner. This action is to foreclose the lien, and the plaintiff seeks to hold the owner of the property, whose demurrer to the complaint, on the ground that it does not state a cause of action, has been sustained.
Section 4 of the Lien Law (Consol. Laws, chap. 33; Laws of 1909, chap. 38), in defining the extent of the lien on the property *683of the owner in favor of one who has furnished materials to a contractor, contains this provision: “ If labor is performed for, or materials furnished to, a contractor or sub-contractor for an improvement, the lien shall not be for a sum greater than the sum earned and unpaid on the contract at the time of filing- the notice of lien, and any sum subsequently earned thereon.”
The amended complaint contains this allegation in an attempt to charge the owner with liability for the sum unpaid to the plaintiff by the contractor: “ IY. That the said defendant contractor duly performed all the conditions of said contract on his part to be performed and so far completed the same as to be entitled prior to the commencement of this action to receive thereon a sum in excess of ‘ the amount of the plaintiff’s claim herein; and that prior to the commencement of this action there was due to said defendant contractor from said defendant owner a sum in excess of the amount of the plaintiff’s claim herein.”
I think this averment is insufficient. It is only by virtue of the statute that the owner is liable to one who has furnished materials upon an agreement with the contractor. (See § 3 et seg) The owner agreed to pay the contractor for building her dwelling. She made no contract with the appellant. The statute, however, enacted for the benefit of the laborer and materialman, has provided a means by which either can secure the amount his due, at least to a certain extent. There must be a sum earned and unpaid to the contractor when the notice of lien is filed, or, if any sum is subsequently earned, the lien attaches.
The essence of the plaintiff’s 'cause of action against the owner is this provision of the statute, and it must by allegation and proof bring itself within it before it can recover, against the owner. (Van Clief v. Van Vechten, 130 N. Y. 571, 577; Brainard v. County of Kings, 155 id. 538; Ball and Wood Co. v. Clark & Sons Co., 31 App. Div. 356 ; Beecher v. Schuback, 1 id. 359; affd., 158 N. Y. 687.)
Something must be unpaid to tile contractor at the time of the filing of the notice of lien, or become due later, in order to enable the plaintiff to recover. It must allege that fact, as it is the pith of its cause of action. (Maneely v. City of New York, 119 App. Div. 376, 388; Leiegne v. Schwarzler, 10 Daly, 517, 552.)
*684In Lemieux v. English (19 Misc. Rep. 545 ; cited approvingly in 155 N. Y. 545, supra) the court used this language, (at p. 546): “ It remained, however, for the plaintiff to show, as essential to the validity of the lien claimed, that at the time of the filing of the notice of such claim there was due and owing to the contractor, or that thereafter there accrued to the contractor from the owners, a sum applicable towards the satisfaction of the debt owing from the contractor to the plaintiff * * **, and hereof the evidence utterly failed.”
The allegation of the complaint is that “ prior to the commencement of this action ” there was a sum due the contractor from the owner. This averment might be true, and still no liability attach to the owner of the premises. The point is, was' anything due when the notice was filed, or was anything earned subsequently ? If the plaintiff should prove that two weeks prior to the filing of the notice of lien, $500, or any other sum, had been earned by the contractor and was then unpaid, it would not make out a cause of „ » action against the owner. She may have paid it before the notice was filed. That is not a matter of defense for the statute explicitly defines when the materialman can hold the owner, and the burden is upon him to prove the facts which make the statute applicable to him. The plaintiff’s secretary and treasurer could not be convicted of perjury on his verification to this complaint if anything was due at any time before the action was commenced, although it states no case against the owner.
I think the judgment should be affirmed, with costs..
Robson, J., concurred.
Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to the defendant to plead over within twenty days upon payment of the costs of the demurrer and of this appeal.