
    Stephen R. Frazier, Resp’t, v. Henry J. McGuckin, impl’d, App’lt.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed April 7, 1890.)
    
    Mechanic’s lien—Evidence.
    In an action to foreclose the lien of a material-man or sub-contractor, the defendant may show in defense, although not alleged in the answer, that the contractor has not completed the Work; the amount of work uncompleted; the cost of completing the same, and any payments made to the contractor on account of the contract.
    Appeal from judgment in favor of plaintiff in an action to foreclose a mechanic’s lien on defendant’s property for material furnished by plaintiff to a sub-contractor for use on the buildings.
    
      Daniel P. Mahoney, for app’lt; A. H. & W. & Osborn, for resp’t.
   Dugro, J.

From the complaint it seems a recovery is sought ■by the plaintiff upon an alleged agreement, whereby the defendant, McGuekin, assumed to pay the plaintiff’s claim: for after alleging the mutual rescission of the Douglas contract under which the material was furnished, the complaint states that “thereupon the said Frederick Kirchner was to assume and did assume the completion of said buildings under some arrangement between him and said Henry J. McGuckin; the said Henry J. McGuckin assuming the payment of the balance due plaintiff of the price or value of the materials so furnished as aforesaid by this plaintiff.” The cause of action which the referee found to have been established .by the evidence was not that which is alleged in the complaint.

The action seems to have been tried upon the assumption that it was brought by a lienor to recover for materials furnished to a contractor to whom, at the time of the filing of the notice of lien, there was a sum due by the defendant owner. If the action is to be treated as though it is such as the case presents, the defendants should have been permitted to show in defense (although not. alleged in the answer) that the contractor had not completed the work; the amount of work uncompleted; the cost of completing the work, and any payments made to the contractor on account of the contract It seems evidence relevant to this defense was excluded by the referee. Hotably is this the case in the exclusion of checks to and receipts from Frederick Kirchner, dated in September, 1886, and the sustaining of objections to the questions, “ Did you furnish material for the trim-work of those buildings; and if so, what ? ” and other questions put to James Mackintosh.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Truax, J., concurs.  