
    McGRAW against GODFREY.
    
      New YorTc Common Pleas;
    
    
      General Term, June, 1873.
    Mechanic’s Lien Law in New York 'City.— Time of Filing Notice.—Personal Judgment.—Amendment of Pleadngs.— Liability of Married Woman,— Agency.—Suit Against Undisclosed Principal.
    A creditor who, being unaware of the fact that one with whom he dealt was in fact an agent for an undisclosed principal, has a right of recourse to the latter whenever that relationship comes to his knowledge. The creditor is! not to be presumed to elect either as his debtor until the name and credit of both are before him.
    
    
      Under the New York city mechanics’ lien law (Laws of 1863, ch. 500), where the court has acquired jurisdiction, in a proceeding instituted to foreclose a valid lien as to part of the debt, the omission during the pendency of the action to renew the lien in the manner prescribed by section 11 of the act, can not divest the court of its original power as given by section 9 to dispose of. the claims originally brought before it, and to proceed to enforce them by personal judgment and execution against any of the parties against whom such a judgment would be proper, had the action been simply one to recover the debt.
    
    Plaintiff performed labor on and furnished material for alteration to defendant’s building during several months without a written contract; and, within three months from the time the last item was furnished, but not within three months from the time the plaintiff’s work was commenced, filed a notice of lien, claiming payment for the whole amount due. Before the referee reported, in the proceeding to foreclose the lien, the lien expired. Held, that although the lien only attached as to so much of the materials and labor as were furnished within three months prior to the filing of the notice, and although that lien had expired, yet the court could give a personal judgment against the owner-for the whole amount due.
    
    In such a proceeding, the defendant applied, during the progress of the trial, to amend the answer by inserting an allegation setting up the infancy of the defendant. The court refused to allow the amendment, and on appeal it was Held,—1. That the amendment proposed was not a matter of form under section 5 of the act, but a matter of substance; and, 3. That the application was to the discretion of the court, and the decision was not reviewable on appeal.
    
    
      Appeal from a judgment.
    This was a proceeding by Joseph McG-raw, against Mary Alice Godfrey to foreclose a mechanic’s lien created under the act of .1863 (Laws of 1863, ch. 500), for the city of Hew York, and was brought by the plaintiff as lienor against the defendant, as contractor and owner of certain premises in the city of Hew York, on which, the plaintiff did certain work and furnished certain material in October, 1870, and each month thereafter until January 33, 1871,. on which day the the last item was furnished. On March 4, 1871, a notice of lien was filed.
    The issues were referred, and on October 15, 1872, the referee reported that the lien had expired on March 4, 1872, and ordered a personal judgment against the defendant for the amount due the plaintiff.
    From the judgment entered on his report, the defendant appealed to the general term.
    
      A. J. Requier, for the defendant, appellant.
    
      A. J. Perry, for the plaintiff, respondent.
    
      
       See also Spencer v. Barnett, 35 N. Y., 94, where the same fact of undisclosed agency was involved.
    
    
      
       See Freeman v. Arment, 5 N. Y. Leg. Obs., 381 (under the act of 1844) ; O’Donnell v. Rosenbergh, 14 Abb. Pr. N. S. ; Schachtler v. Gardiner, 41 How Pr., 253, and 47 N. Y., 404.
    
    
      
       See Hubbell v. Schreyer, p. 384 of this volume; Spencer v. Barnett (above).
      
    
    
      
      
         If seasonably interposed, infancy is a defense (Copley v. O’Neil, 57 Barb., 299 ; S. C., 1 Lans., 214 ; and the case in the text is now before the court of appeals on this question.
      In Gambling against Haight (New York Common Pleas ; Special Term, June, 1873), it was Held,—
      1. That under the New York city mechanic’s lien law of 1863, great latitude is allowed as to amendments in 'Compliance with the provisions of the statute itself (Laws of 1863, ch. 50Ó, § 3), and the like practice should prevail in applications for leave to file supplemental pleas, which are governed by section 275 of the Code of Procedure.
      2. In a proceeding to foreclose a mechanics’ lien under that act, a contractor made a claim against the owner for work done under a written contract, and also for extra work. After the case was referred, and during the progress of the trial, he moved for leave to file a supplemental pleading seeking to recover on a quantum meruit for the whole work done, alleging that he had just discovered that the written contract which had been in the possession of the owner had been materially altered in fraud of his rights. Held, that this was the same cause of action as the one stated in the original pleading, and the supplemental pleading should he allowed.
      Motion for leave to file supplemental answer.,
      This action was brought for the foreclosure of a mechanic’s lien under the act of 1863 relating to the city of Mew York. The plaintiff was a sub-contractor. The contractor and owner were defendants. The contractor, in his answer, set up his own lien and claimed to enforce it, and asked for personal judgment against the owner, his co-defendant. His claims were, 1. Por moneys due under the written contract between him and the owner. 2. Moneys due for extra work and for changes and alterations in contract work at owner’s request. The case was referred, and while the trial was pending the contractor called upon the owner for the original contract,plans and specifications, and put them in evidence. He alleged that he afterwards discovered that the owner had altered the plans materially while in his possession without the contractor’s consent, and in fraud of his rights. He applied to the referee for leave to amend his answer by setting up these facts and claiming on a quantum meruit for the whole work, which was refused. He then asked leave to file a supplemental answer setting up these facts as discovered after the trial was commenced.
      
        Mr. Thain, for motion.
      
        Mr. Davenport, opposed.
      
        J. F. Daly, J.—Under the mechanic’s lien act of 1863 great latitude is allowed as to amendments in compliance with the provisions of the statute itself (section 3), and the like practice should prevail in applications for leave to file supplemental pleas. The provisions of the Code, section 375, govern this application, and the owner maintains that as the matter desired to be set up by the supplemental answer is a different cause of action from the contractor’s original claim, it is not “material to the case ” presented in his original pleading (Code, § 375; 13 Sow. Pr., 531; 34 Bai'b., 198; 17 Abb. Pr., 184 ; 34 Ba/i'b., 198). I do not consider the causes of action different. Though this action is founded on the mechanic’s lien, the relief which may be administered by the court, so far as personal judgments among the parties in favor of and against each other are concerned, is wholly independent of the lien, and not based on it, the court having-acquired jurisdiction of all the parties. Lien Law of 1863, § 9 ; Barton v. Herman, 8 Abb. Pr. N. S. 399 ; 3 Daly, 320. The claim of the contractor was upon his contract with the owner to build the premises covered by the lien. The evidence of the contract is in writing. He claims that the writing has been so materially and fraudulently altered as must lead to its rejection as evidence, leaving him to other evidence of his work and its value. But the contract, which is the basis of either claim, is the same; for if he had discovered the alterations before offering the contract in evidence,’ and it had been ruled out, he would have to prove the cause of action he now desires to set up. Both claims arise out of the same contract, and are payment for the same work, and that they are not different is seen from the circumstance that a recovery on the one would be a bar to recovery on the other. I therefore allow the supplemental answer to be interposed without giving any opinion as to the merits.
      [Remarks on a question not passed on are omitted.]
      Motion granted, without costs.
      * Quoted on p. 385 of this vol., note.
    
    
      
       Present—Balt, Ch. J., Robinson and Larremore, JJ.
    
   By the Court.—Robinson, J.

The present action or proceeding was instituted under the mechanics’ lien law of 1863, p. 859, ch. 500, to foreclose a lien filed by the plaintiff, March 4, 1871, upon premises No. 147 West Fifty-third-street, owned by the defendant, or in which she held an equitable title, under an executory contract of purchase. The claim was founded on an account for labor and materials done and furnished, from time to time, at different dates, between September 16 and December 18, 1870, amounting to four hundred and twenty-seven dollars and nineteen - cents. Under the decision of the general term of the court, in Hubbell v. Schreyer, decided March term, 1873 (p. 284 of this volume), the lien, as to any items of the account that had accrued more than three months prior to the filing of the notice of lien, had expired, and as there was no renewal of any such lien during the pendency of the action, in the manner provided by section 11 of the act, and within one year after the filing of the original notice, the entire lien ceased, and the sole remedy that could be afforded was a personal judgment. The question whether the plaintiff had given a personal credit to the husband of the defendant was one of fact, fairly decided by the referee upon conflicting proof, and was warranted by the evidence that he acted for her benefit in procuring this work, &c., to be done and furnished for the benefit of her separate estate, and that she was an undisclosed principal in the transaction. Although an apparent credit is given to the agent, yet the creditor, being unaware of bis relations to the undisclosed principal, has a right of recourse to the latter whenever that relationship comes to his knowledge. The creditor is not to be presumed to elect either as his debtor, until the name and credit of both are before him (Story on Agency, §§ 288, 289, 446).

The entire claim being for the improvement of the defendant’s separate estate, and the services rendered being for its direct benefit, the right of enforcing the debt against her separate property is in no way lessened because her husband acted as her agent in procuring the work to be done (Owen v. Cawley, 36 N. Y., 600).

Where, as in this case, the court acquired jurisdiction under such special proceeding, founded upon a valid lien as to part of .the debt, the omission, during the pendency of the action, to renew it in the manner ’ prescribed by section 11, did not. divest the court of its •original power, as given by section 9, to dispose of the •claims originally brought before it, and to proceed to enforce them, by personal judgment and execution against any of the parties against whom such a judgment was proper, had the action been simply one to recover the debt. Under the acts of 1860, ch. 90, sec. 157, and 1862, ch. 172, the defendant, although a married woman, is subject, as to such a debt, to have her liability enforced against her separate estate in an action at law, the same as if she were an unmarried female; and by section 8 of' the latter act, her husband is relieved from all responsibility for any bargain or contract of the wife in respect to her sole or separate estate. While, however, the right of lien for any portion of the debt had expired when judgment was rendered, the claim against the defendant personally still subsisted, and was in no way affected by the fact that the lien that might (if renewed) have been foreclosed was but for a part of it. There was such an entirety 'in the account for the continuous items of service as a personal debt that but one action could have been brought upon it (Secor v. Sturges, 16 N. Y., 468, and cases cited); and there is no inconsistency in the entirety of the debt as the subject of but a single action, and the existence of a valid lien but for a portion of it. The recovery of the entire debt, growing out of the same transaction for which the partial lien existed, was proper.

Another question is presented as to whether the referee ought hot to have allowed an amendment to the answer, during the progress of the trial, by permitting the defendant to set up an additional defense that at the time of the occurring of the alleged liability or indebtedness she was an- infant. The application was made long after the trial had commenced, without any proof by affidavit or other verification, of the fact, or any reason assigned for the previous neglect to interpose the defense. It was not of any subsisting infancy, which would impair the validity of the judgment (McMurray v. McMurray, 9 Abb. Pr. N. S., 315 ; S. C., 60 Barb., 117), and the only argument to give color to the, alleged error of the referee in refusing the amendment is founded on the clause in the lien law of 1863, ch. 513, § 5, which provides that “the court shall proceed without regard to matters of form, which shall be amendable at all times, while the proceedings progress, without costs, and judgment shall be rendered according to the equity and justice of the claims of the respective parties.”

The amendment asked for was, however, clearly not one as to mere moMer of form, but substantially changed the defense (Code, § 173).

Even if a proper case was presented for an amendment on the trial, of the latter description, its allowance or disallowance is discretionary with the court or referee, and is not reviewable on appeal (Richtmeyer v. Remsen, 38 N. Y., 206 ; Hendricks v. Decker, 35 Barb., 298).

Judgment should be affirmed, with costs.

Daly, Ch. J., and Larbemore, J., concurred.  