Gaynor, J.The complaint alleges that the defendant entered into a written contract to convey certain real estate to *92the plaintiff, and that he failed to do so on the contract day because he could not give good title. There is also the following allegation: “and in said agreement the defendant acknowledged the payment by the plaintiff of $100 in part payment of said premises.” This is not an allegation of the payment of $100 by the plaintiff to the defendant. ¡Nor is there any allegation that the plaintiff searched the title and incurred expense therein. The prayer for judgment for $167.50 is therefore based on nothing. The Us pendens is filed on the theory that the plaintiff may he given a lien by judgment on the land for the amount he paid on account and of his expenses in searching the title; but as the complaint alleges no such payment or expense there is no cause of action alleged.
The motion is granted, with $10 costs.