
    Charles J. Perry, Respondent, v. Michael Levenson, Individually and as Executor, etc., of Sarah Levenson, Deceased, and Others, Appellants, Impleaded with John McCarron and Ephraim Davidson, Respondents, and Henry L. Pierson and Others, Defendants.
    
      Building contract providing that alterations may be made in the work—a statement in the complaint in an action thereon that plaintiff had “fully completed the work”—proof of alterations is competent thereunder—power of a referee to allow an amendment of the complaint—terms imposed—effect of a consent to a reference—abatement of an action to foreclose a mechanics lien by the owners death-form of reply to a counterclaim—interest on an unliquidated claim.
    
    A building contract expressly secured to the owner the right, during the progress of the work, to make alterations, deviations, additions or omissions in respect to the work to he done or the materials to he furnished. The complaint in an action brought by the contractor to foreclose a mechanic’s lien filed by him against the premises alleged that the plaintiff had “ fully completed the work provided by said contract.”
    Upon the trial, the referee, to whom the action was referred, excluded, on the ground that it was not admissible under the pleadings, evidence tending to show changes, alterations and omissions which had been made in the work by the direction of the owner. He did, however, permit the plaintiff, upon the payment of fifty dollars costs, to amend his complaint in this respect.
    
      Held, that as the amendment did not change the cause of action, but only stated more definitely and fully the facts constituting performance, the referee had power to allow the amendment, and that the terms which he imposed as a condition thereof were adequate.
    
      Semble, that the original Complaint was sufficient to authorize the admission of the evidence in question. ■
    A referee has the same power to permit an amendment of the pleadings upon a reference as the court has upon a trial. The only limitation upon such authority is that the amendment shall not change substantially the cause of action or embrace a new one. The terms upon which such amendment shall be allowed are within the referee’s discretion, subject to review by the appellate court.
    Parties who consent to a reference consent to the exercise of all the powers possessed by the referee, including the power, in a proper case, to permit an amendment to the pleadings.
    An action brought under the provisions of the Code of Civil Procedure to foreclose a mechanic’s lien does not abate by the death of the owner of the premises during the pendency thereof, but may be revived against the successors in interest of the deceased owner, without prejudice to proceedings already had therein.
    A reply to a counterclaim, by which the plaintiff “alleges that he denies all and singular the allegations in said answer which sets up a counterclaim,” while not commendable in form, is not demurrable.
    Interest is not allowable on an unliquidated claim.
    Appeal by the defendants, Michael Levenson, individually and as executor, etc., of Sarah Levenson, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 10th day of December, 1901, upon the report of a referee, decreeing,- among other things, the foreclosure of a mechanic’s lien and the sale of certain premises, with notice of an intention to bring up for review upon such appeal an order made by said referee, bearing date the 30th of March, 1899, and entered in said clerk’s office, permitting an amendment of the plaintiff’s complaint, and also an order entered in said clerk’s office on the 8th day of October, 1899, denying the motion made by Sarah Levenson, one of the original defendants, to terminate the reference herein, and for a trial of the action by the court or by the court and a jury, and also an order entered in said clerk’s office on the 14th day of June, 1899, overruling the demurrer interposed by the said Sarah Levenson to the plaintiff’s reply, and also an order entered in said clerk’s office on the 23d day of February, 1901, reviving this action and permitting the issuance of a supplemental-summons.
    
      Benno Loewy, for the appellants.
    
      George W. Wager, for the plaintiff, respondent.
   Laughlik, J.:

In the month of June, 1897, Sarah Levenson was the owner of premises situated at the northwest corner of Seventy-second street and Lexington avenue and of the Hotel Premier,” erected thereon. She was desirous of having thé upper story of the hotel reconstructed and an additional story erected; and in that' month negotiated a contract with the plaintiff, a contractor and builder, for doing the work and furnishing the material according to plans and specifications which she had caused to be prepared by an architect. By consent of the parties work was proceeded with before the execution of the formal written contract, which was signed on or about the 29th day of June, 1897. Thé contract expressly provided that the owner should have the right at any time during the progress of the work ■ to make any alterations, deviations, additions or omissions from the specifications, drawings or requirements of the agreement concerning the work to‘be done or materials to be furnished, but that in such event there, should be added to, or deducted from, the contract price “ a sum or sums equal to a fair and reasonable valuation therefor ; provided, however, that no alterations, deviations or additions shall be charged or allowed for unless the party of the first part, or said architects,, shall direct in writing the making thereof.”. The original complaint, upon which issue was joined and the .order of reference made by consent of the parties, alleged the making of the contract in writing on the 29th day of June, 1897; that it provided that the work and all extra work contemplated by the contract should be done to the satisfaction and under the direction of the architects, and that the plaintiff “has fully completed the work provided by said contract; ” that additional work was done by the direction and at the request of the defendant of the reasonable valué of $882.04.

Upon the trial evidence offered by the plaintiff tending to show changes, alterations and omissions in the work called for by the plans and specifications made by direction of the architects or defendant’s husband, who was her attorney in fact representing her upon the work, was objected to as not within the issues, and the objection was sustained, the referee ruling that the plaintiff should have pleaded such changes, alterations and omissions, and the reference was adjourned for the purpose of enabling the plaintiff to make an application to amend the complaint. The plaintiff then gave formal notice of a motion before the referee at the adjourned day for the amendment of the complaintin these regards and changing the allegation of performance of the work provided for by the contract to an allegation of performance of the work as modified. Upon the return of the motion counsel for the defendant challenged the jurisdiction of the referee to entertain the same, but the amendment was allowed, upon the payment of fifty dollars costs, and the amended complaint was served. The defendant answered; the plaintiff replied, and the defendant demurred to the reply. The plaintiff then moved at Special Term for judgment on the demurrer as frivolous and the motion was granted. The parties then proceeded with the reference.

The plaintiff contended before the referée and still contends that no amendment Was necessary because the contract itself provided for changes, alterations and omissions at the election of the owner and made it the duty of the plaintiff to perform the work as thus modified. There is much force in this contention. It being the duty of the plaintiff to vary the work from the plans and specifications as directed by the defendant, her architects or representatives, i,t is difficult to see how the plaintiff could establish performance of his contract if he failed to comply with such directions. (Smith v. Wetmore, 41 App. Div. 290.) Inasmuch, however, as the work was not performed in accordance with the plans and specifications as they existed at the time the contract was made, and since the allegations of the complaint were susceptible of the construction that the • plaintiff’s claim was that he had performed the work in accordance with those plans and specifications, and since the defendant might wish to deny that the changes, alterations or omissions were made with her authority, the complaint should, at least, have been made more definite and certain even though it could not be said that the evidence was inadmissible thereunder. The amendments which were allowed, however, did not embody a new cause of action. The plaintiff’s cause of action as alleged in the original as well as the amended complaint was upon the contract, The amendments merely show more definitely and fully the facts constituting per. formance and, in effect, they merely make the complaint more definite and certain in that respect. Under these circumstances, while the complaint was subject to attack by motion to make it more definite and certain, it is not apparent that it was insufficient to admit this evidence without amendment.

The plaintiff, however, under the ruling of the referee was obliged to amend. A referee has the same authority to allow an amendment to the pleadings as the court has upon the trial, as distinguished from a Special Term for the hearing of motions; and the only limitation upon this authority seems to' be that the amendment shall not change substantially the cause of action or embrace a new one. (Code Civ. ProCi' §§ 723, 1018; Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646; Price v. Brown, 98 id. 388; Bennett v. Lake, 47 id. 93 ; Knapp v. Fowler, 26 Hun, 200; S. C., 30 id. 512; Wilcox v. Onondaga Co. Savings Dank, 40 id. 297 ; Bullock v. Bemis, Id. 623.) If the amendment were necessary it thus appears that the referee possessed ample authority to. allow it.

It is contended that the terms upon which the amendment was allowed were inadequate. The terms upon which an amendment,, allowable by a referee, shall be permitted are within his discretion, subject of course, to review by this court (Smith v. Rathbun, 75 N. Y. 122; Van Ness v. Bush, 22 How. Pr. 481) ; but since the cause of action was not materially changed the allowance was quite liberal. (Hosley v. Black, 28 N. Y. 438.)

By the terms of the contract the work was to be performed by the 15th of August, 1897. It was not, in fact, completed until the sixteenth or seventeenth day of November. The appellants contend that time was of the- essence of the contract, and that by failing to complete the work within the time specified the plaintiff has lost his right to recover. The plaintiff alleged, both in the original and amended complaint, that the failure to perform within the time specified was owing to delay on the part of the defendant in giving possession of the premises and in furnishing details and plans, and by reason of an injunction obtained by the department of buildings in consequence of defective and unlawful plans, and that “for numerous reasons for which plaintiff was not accountable, defendant Levenson consented that plaintiff should proceed with the work and complete the same, and did extend the time for such completion, and same was completed as diligently and expeditiously as the delays caused by defendant Levenson permitted.” The principal delay was owing to the fact that the plans of improvement filed by the owner with the building department were in some respects materially different from those on which the contract with the plaintiff was made, and the building department forbade, and obtained an injunction preventing the performance of the work in accordance with the plaintiff’s contract, which injunction was operative for about a month. Prior to the issue of the injunction considerable work had been done by the plaintiff in accordance with his contract which it was necessary to alter in order to conform to the plans approved by the building department. The delay clearly arose through the fault of the owner. Further delay was caused by the failure of the owner’s architects to furnish seasonably detailed plans for the iron work. The owner desired to use the kitchen and dining rooms on the sixth floor, and on that account requested the plaintiff to complete the seventh story, where the new dining rooms and kitchen were to be, first. This was contrary to the original understanding according to the testimony introduced on behalf of the plaintiff, and which the referee evidently believed, but it was acquiesced in by the plaintiff, and this manner of performing necessarily took much longer. Furthermore, it was an unusually rainy season. The evidence justified a finding that the owner made no serious complaint about the delay until November, and, fully realizing that, it was not owing to the fault of the plaintiff, acquiesced therein.

The only ground assigned for the refusal of the architect to give a certificate of completion was the plaintiff’s failure to perform the work within the time specified.- The evidence fairly warranted a finding that this refusal was not made in good faith, and, therefore^ the failure to obtain the certificate does not bar a recovery.

The contract price of the work was $8,000. The referee allowed a deduction of $292 for work and materials omitted by agreement between the parties and for some slight and unimportant omissions, and allowed $718.94 for extra work, and also interest on the balance unpaid from the date of completion.

The appellants contend that there were many changes, alterations and omissions in the work made without the consent of the owner or her- authorized agents. It would not be possible, within the reasonable bounds of this opinion, to discuss the various items or the evidence relating thereto. For the most part there was a conflict of evidence, the- testimony adduced on behalf of the plaintiff tending to show that such changes, alterations or omissions Were either directed by the- owner’s husband or the architects or. acquiesced in by them. There were a few omissions which the referee was justified in finding were made inadvertently and were not of such a substantial character as to require or even warrant a finding that the contract was not substantially performed. He was right, therefore, in making a deduction for these items and allowing a recovery for the balance.

The appellants also complain of the Workmanship in some respects and of the quality of the material furnished; but upon these points there was also a conflict of evidence. The referee was quite liberal to the appellants in the deduction made, and even though there be other small items for which a deduction should haVe been made, we are convinced upon the whole that substantial justice has been done.

There is no merit in the contention-' that certain changes, alterations and omissions were not authorized because there was no written order thereof. The evidence warranted a finding that the owner, through her husband, was present, and either consented to or acquiesced in all these changes.

The sole ground upon which -the motion to vacate the order of reference was made was that- the defendants only consented to a reference of the issues as they existed at that time. When parties consent to a reference they consent to' the exercise in a proper case of all the powers possessed by a referee, which includes the authority to amend the pleadings, as already stated. (See Ballin v. Dillaye, 37 N. Y. 35, 39.)

The appellants opposed the motion to continue the action against them on the ground that the cause of action did not survive the death of the owner, and they also claimed that the order was erroneous in providing that it was to be without prejudice to the proceedings already had. The appellants, as the successors in interest of the deceased owner, took subject to the lien and cause of action existing against her as well as the proceedings had to enforce the same prior to her death. (Code Civ. Proc. §§ 757, 3401; Moore v. Hamilton, 44 N. Y. 666.) The appellants rely on the case of Leavy v. Gardner (63 N. Y. 624), but that was a special proceeding to enforce a lien under chapter 500 of the Laws of 1863, and it was there held that section 121 of the Code of Procedure, permitting a revival of actions, did not apply to such a special proceeding. It is manifest that this has no application to a suit to foreclose a mechanic’s lien under the Code of Civil Procedure.

It is contended that the plaintiff’s reply was demurrable because it did not contain a denial of the material allegations of the counterclaims. This claim is based upon the form of the denial, which is that the plaintiff, replying to the defendants’ counterclaims, “ alleges that he denies all and singular the allegations in said answer which sets up a counterclaim.” While this form of denial is not commendable, we have held that it is sufficient. (Pray v. Todd, 71 App. Div. 391.) It is claimed that the demurrer was well founded because the reply, instead of denying the allegations of each counterclaim separately, referred to them specifically, and embraced them all in one denial. The demurrer was clearly frivolous, and judgment thereupon, accordingly, was properly given. (Code Civ. Proc. § 537.)

The contract provided that if at the time any payment became due on the contract any lien had been filed, or the. owner had notice of any claim against the contractor, sufficient might be withheld to indemnify the owner against such lien or claim. It does not appear that at the time the final payment on this contract became due any lien had been filed or that notice of any claim against the contractor had been given to the owner, nor was payment withheld on either of these grounds. Subsequently other liens were filed,, which have been allowed by the referee and deducted from the amount owing to the plaintiff. • Manifestly, this should not defeat the plaintiff’s right of recovery for the balance.

It appears from the testimony of thé plaintiff that about a year prior to the time he was testifying he assigned this cause of action. The claim is made that the action is not. prosecuted in the name of the real party in interest, and that the plaintiff is not entitled to recover on account of a provision of the contract to the effect that upon an assignment of the contract or of any moneys to grow due thereunder the owner might withhold sufficient. to indemnify her against such assignment. The record does not show on what day the testimony of the plaintiff, to the effect that he had assigned the contract about a year before, was given, and inasmuch as the action was pending nearly four years before the referee made his report, we cannot infer that such assignment was made before the commencement of the action, and the referee, in his opinion, states that it was not. If the assignment was made after the commencement of the action, in the absence of a substitution of parties, it could be continued in the name of the plaintiff. (Code Civ. Proc. § 756.)

The appellants complain that interest has been allowed on unliqub dated claims for extra work from the time of the completion of the contract. In the main, it appears that the extra work was performed on an agreement as to the compensation to be paid therefor. It may be that part of this claim was unliquidated. The appellant, however, refers us to no evidence clearly showing the fact, and we find hone. Of course, interest is not allowable on unliquidated claims of this kind, but if any such interest has been allowed it must necessarily be trivial in amount, and our attention has not been drawn to any evidence on this subject which would warrant us in modifying the judgment by deducting any amount on account of interest erroneously allowed.

The judgment should be affirmed^ with costs.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ. concurred.

Judgment affirmed, with costs.  