It has been recently held in this court, at special term, that where there is neither allegation nor proof at the trial, that the defendant, in proceedings under the lien law of 1851, is the owner of the building upon which the lien is claimed, the claimant cannot recover, if that objection be properly taken and insisted upon.
But in a proceeding in the marine and justices’ courts, where the notice of claim filed is informally treated as the complaint, and in that there is an averment of the defendant’s ownership, if the defendant answers setting up other grounds of defence, goes to trial and to judgment without raising any objection upon this ground, when, if the objection had been raised, the claimant had an opportunity to supply the proper proof, I think the judgment should not be reversed for the want of such proof.
In another respect, and in a matter which was distinctly put in issue, I think there was an entire failure of proof of an essential pre-requisite to the plaintiff’s recovery.
It is an express condition of the claimant’s right, that the work, &c., claimed for, should be done or furnished “ m conformity with the terms of the contract with the owner of the building.” In this case, the proof is, that one “ Robinson erected the building for the defendant,” and the claimant furnished to Robinson hoisting apparatus in aid of the erection.
I think the claimant should have gone further, and showed enough to have brought him within the provisions of the statute, at least so far as to show a contract between the owner and Robinson, and that the owner’s contract with Robinson had been so far performed, as was prima facie sufficient to entitle Robinson to recover, had he brought his action for the same cause.
There was no difficulty or hardship in this. The claimant *725had the same, if not better, means of proof on this subject than Robinson, the contractor, would have had; for, doubtless, Robinson was himself a competent witness to supply this proof.
And again, I think the court below erred in permitting two witnesses to testify to the value of “ the use of the apparatus in question,” when they had not seen it, nor, so far as appears by the return, heard it described, nor had any knowledge of the purposes for which it was employed, except what is contained in the plaintiff’s bill of particulars, in these words: “ rigging falls and blocks, strapping barrels, splicing falls, and furnishing same.”
Without proof that all apparatus answering such a description is alike, which seems obviously impossible, or evidence, at least, that the witness heard the specific apparatus described by some other witness, who testifies to the description, I think it was not competent to inquire of a witness who had never seen it, what its use was worth.
The judgment must, I think, be reversed upon these grounds, aside from the other objection that there was no proof that any money had become payable by the defendant upon any contract with Robinson, for the erection of the building.
Judgment reversed.