
    Margaret A. Case, Resp’t, v. The Phœnix Bridge Co., App’lt.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed December 1, 1890.)
    
    1. Contract—Res adjudicara.
    The action was brought for moneys due on a contract, for extra work, and for damages sustained by the failure of defendant to provide materials as agreed. Defendant allowed judgment to be entered on the first two causes of action. Held, that the judgment so entered was an adjudication that plaintiff had performed all the conditions precedent on her part, and was as controlling as if entered in an action brought for the first cause of action alone.
    3. Evidence—Parol to tart contract.
    It is not error for a referee to admit testimony “provided it does not vary or alter the contract,” and subject to a motion to strike it out if it tends to do so.
    3. Same.
    Evidence to show the time when plaintiff was to commence work is admissible where the contract is silent on that subject.
    
      4. Same—Damages.
    In an action to recover damages arising from delay caused "by defendant’s failure to supply materials, evidence of the price at which the articles composing plaintiff’s plant could be let by the day is admissible, as that was an element of the damage sustained by plaintiff.
    6. Pleading—Amendment—Referee.
    A referee has no power to allow an amendment of the answer on the trial by setting up a new defense.
    Appeal from a judgment recovered against defendant upon the report of a referee.
    The action was commenced to recover upon three causes of action. It appeared that plaintiff and defendant entered into an agreement whereby plaintiff agreed to sink a specified number of iron piles for an iron pier at Cape May, N. J., and do other work specified in the contract. The work was to be completed within thirty days after sufficient iron had been delivered and defendant was to deliver all the iron necessary, in proper form, as rapidly as the work required. The other facts appear sufficiently in the opinion.
    
      Shearman & Sterling, for app’lt; Edward S. Clinch, for resp’t.
   Truax, J.

The amended complaint contained three causes of action. One to recover the amount due on a contract, another to recover for certain extra work, and the third to recover for damages sustained by plaintiff because of the failure of defendant to perform certain conditions of said contract on its part. The defendant allowed judgment to be entered against it on the first two causes of action, but defended as to the third cause of action.

It was héld on a former appeal, 55 Supr. Ct., 25; 10 N. Y. State Rep., 474, that the complaint (as to the third cause of action) in effect alleged that plaintiff and the force she had under pay to perform the work she contracted to perform upon certain materials and a certain structure, which material the defendant contracted to furnish as rapidly as the progress of the work required, and which structure was to progress as fast as possible, were kept by the act and neglect of defendant waiting an unreasonable length of time for such materials and structure, and that she was obliged to pay her men for their-working time in fifty-five days more than she would have paid them had defendant performed the conditions of the contract on its part, to the plaintiff’s damage.

The printed case shows that on the trial evidence was given showing delay on the part of the defendant in furnishing said material, and evidence was also given that tended to show that plaintiff was damaged by such delay. Under the ruling on the former appeal a cause of action in favor of the plaintiff against the defendant was found on the trial.

The defendant contends that plaintiff did not perform all the conditions precedent on her part, and for that reason the complaint should have been dismissed, unless the judgment entered upon the first two causes of action was an adjudication that she had performed all such conditions.

We are of the opinion that said judgment was such an adjudication, for if plaintiff had not substantially performed all such conditions precedent she would not have been entitled to recover in an action brought upon the contract; that judgment is as controlling as it would have been if it had been entered in an action brought by plaintiff to recover on the first cause of action alone.

The defendant also contends that certain evidence that tended to vary the written contract was admitted on the trial. The referee said that he would admit the evidence provided it did not vary or alter the contract, and further said that he would grant a motion to strike out the testimony in case it tended to alter or modify the contract. No such motion was made. We think that it was not error for the referee to admit the testimony conditionally, and, moreover, the testimony did not vary the contract; it added to the contract a provision not in conflict with the contract, upon which the contract was silent, viz.: the time when plaintiff was to begin work under the contract.

The referee did not err in refusing to allow defendant to amend answer on the trial by setting up a new defense. The referee did not have the power to allow such an amendment.

It was not error for the referee to admit evidence showing the price at which the various articles constituting the plant used by plaintiff in doing the work mentioned in the contract could be let by the day. Such evidence tended to show one element of the damage sustained by plaintiff through the delay of the defendant.

The judgment is affirmed, with costs.

Ereeeman, J., concurs.  