
    McGRAW against GODFREY.
    [Affirming 14 Abb. Pr. N. S. 397.]
    
      Court of Appeals,
    February, 1874.
    Mechanics’ lien.—Amendment.—Ineant.
    A mechanics’ lien can not be acquired for work or materials furnished under the contract with the equitable owner of the land, as against one holding the legal title, unless the work or labor is furnished by permission of the latter.
    If, however, the equitable owner permits the building to be erected, and before notice of lien is filed, he becomes the legal owner by the performance of a contract for its purchase, the conveyance will be .held to relate to the time when the contract of purchase was mac[e, and the equitable owner will be deemed to be within the statute. The provision of the mechanics’ lien law of 1863 (ch. 500, p. 859, § 5), that matters of form should be amendable at all times without costs, does not compel the court to allow an amendment of the issues ; for the issues which are to be tried are not matters of form, they are of .the substance of the litigation.
    Although where an infant is a party, he is entitled to have the necessary amendments of the pleadings allowed to bring his case properly before the court, it is in the discretion of the court or referee to refuse to allow an amendment by an adult setting up the defense that he was an infant at the time of making the alleged contract.
    Under the act of 1863, a lien must be shown to have existed at the time of the commencement of the proceedings; but if jurisdiction is thus established, the court may proceed and determine the entire controversy, and may render a personal judgment after the lien has expired.
    
    
      Under the provision of the statute which permits the filing of a lien within three months after the work is finished or abondoned, if there be an entire work under one contract for all that was done, no part of the work will be regarded as finished until all that was intended in the contract has been performed.
    Appeal from a judgment.
    
      The proceedings "by which the judgment appealed from was recovered appear fully in the report of the case in the common pleas (16 Abb. Pr. IV. S., 397).
    
      
      A. J. Requier, for defendant appellant.
    A. «7. Perry, for plaintiff respondent.
    
      
       Compare Maltby v. Greene, 3 Abb. Ct. App. Dec. 144.
      In Welcome v. Jones (Buffalo Superior Court, General Term, June, 1873), a stricter construction was given to the act applicable in Buffalo and certain other cities and villages (See Abbott’s Dig. 3 ed. vol. 4, p. 334, note).
      
      
        Welcome W. Jones and others sought to foreclose a lien they claimed by proceedings against Lucretia F. Walker.
      
        JV. Morey, for respondents.
      
        B. F. Bay, for appellants.
      By the Court.*—Smith, J.—This is an action originally brought before a justice of the peace of the city of Buffalo, to enforce a mechanics’ lien claimed to exist in favor of the plaintiffs for work done, and materials furnished by them for defendant, the owner of a dwelling-house and lot in said city, for repairs upon said house. The plaintiffs had judgment in the'court below, for one hundred and thirteen dollars and seventy-five cents and costs, and an appeal was taken to this court, in which a new trial was had which resulted in a verdict for the plaintiffs, and from the judgment rendered thereon, this appeal was taken.
      On the trial in the court below as well as in this court, various objections were urged by the appellant to the respondents’ right to recover, but one of which, in the view we have taken of the case, is it necessary for us to consider.
      The action is brought pursuant to the provisions of chap. 305 of the Laws of 1844, as amended in 1845 and 1851. This statute provides for creating a lien on any building, and the lot on which it stands for any labor performed or materials furnished in building, altering, or repairing such building or its appurtenances, by virtue of a contract with the owner. And the lien is to be secured by the person preforming such labor or furnishing such materials, filing in the county clerk’s office specifications of the work by him contracted to be performed, or materials to be furnished and stating the price or prices agreed to be paid therefor; or, if the contract is in writing filing a true copy thereof in said office; and serving notice thereof personally on the owner of the building.
      On the trial of this cause the plaintiffs in order to establish the lien which they seek to enforce therein, proved that they had duly filed in the county clerk’s office specifications stating their claim for labor performed and materials furnished by plaintiffs for defendant,
      *Present, Clinton, Oh. J., Sheldon and Smith, JJ.
      
        amounting to one hundred and eight dollars and fifty cents, “to make the repairs hereinafter mentioned under and in pursuance of an agreement thereto,” that the labor was performed and the materials furbished in repairing and painting the defendant’s house on the north-east comer of Chestnut and Swan streets, and u that by the terms of the original agreement which was made with us by the said Lucretia F. Walker, said house was to be painted for the sum of one hundred and eighty dollars.” The specifications then proceed to state certain extra work not included in said agreement, amounting to twenty-eight dollars and fifty cents, done at defendant’s request and for which she agreed to pay, and that defendant had “paid on account of said work and materials the sum of one hundred dollars, leaving a balance unpaid of one hundred and eight dollars and fifty cents,” and they conclude with a description of the lot on which the house stands, and the claim of a lien thereon for said sum of one hundred and eight dollars and fifty cents. The plaintiffs also proved due personal service of notice of said specifications, and of the filing thereof on defendant pursuant to the statute.
      The plaintiffs further proved that they made an agreement with defendant, to paint the outside of her dwelling-house on thfe lot described in the specifications, and the fence on the lot, three coats, for the sum of one hundred and eighty dollars, that they had performed all the work, that they also performed the extra work claimed to the amount of twenty-eight dollars and fifty cents, that defendant had paid them one hundred dollars on account, and that the balance was unpaid, and rested their case.
      The defendant thereupon moved the court to non-suit plaintiffs bn the ground that the specifications filed and notice thereof served are insufficient to establish a lien on the defendant’s house and lot, inasmuch as they do not specify correctly the work to be done under the contract, no reference being made to the painting of the fence, and the proofs in the case established no lien on the house and lot.
      The court denied the motion, to which ruling defendant excepted, and after some testimony for defendant the cause was submitted to the jury, who found a verdict for plaintiffs for one hundred and seventeen dollars and fifty cents, on which judgment was entered, and the defendant brought this appeal.
      The court erred in refusing the non-suit asked for. If when the action was brought the lien claimed bad no existence, the action can not be maintained (Freeman v. Cram, 3 Com., 305; Mushlitt v. Silverman, 50 N. Y., 360; Grant v. Vandercook, 57 Barb., 165; Huxford v. Bogardus, 40 How. Pr. B., 94; Donnelly v. Libby, 1 Sweeney, 359; Quimby v. Sloan, 3 E. D. Smith, 594; The People ex rel. Hall v. Lamb, 3 Lansing, 134 and Colie v. O’Keel, cited in opinion of court in the last case).
      In Mushlitt v. Silverman, the court said, “ The lien claimed by the plaintiffs is the creation of statute, and depends solely for its validity upon the act creating it. The act is an innovation upon the common law affecting property and rights of property, authorizing as it does property to be incumbered without or against the consent of the owner, and without a resort to legal process or judicial action. Such an act can not be extended in its operation and effect beyond the fair and reasonable import of the words used; and the plaintiffs asserting their lien must bring themselves within its terms and the lien must be shown, not only to have been regular and valid in its inception but to be a continuing and existing lien under the statute.”
      Let us consider this case with reference to the sound principles thus laid down.
      The contract stated in the specifications filed, in the notices served on defendant, and in the complaint in the case, was to paint defendant's house for the sum of one hundred and eighty dollars. The contract proved * on the trial was to paint defendant’s house and, the fence on the lot for the sum of one hundred and eighty dollars. The contract proved was an entire one embracing the work on both the house and the fence, and the contract price was one round sum, to be paid for the work on both, without any designation of the sum to be paid for either, or any means furnished by the contract itself by which to ascertain what portion of the agreed price was to be paid for the work on the house, as distinguished from the work on the fence. Whether the work ou the house or that on the fence was the greater or more expensive does not appear. Nor is it material. Under the proofs in the case, the specifications do not truly state either 1 ‘ the work contracted to be performed,” or “the price or prices agreed to be paid therefor,” as required by the express terms of the statute. The work contracted for is stated in the specifications to be painting the house, the proof shows it to be painting the house and fence; the price is stated in the specifications to be one hundred and eighty dollars, for painting the house; the proof shows it was to be one hnu-dred and eighty dollars for painting the house and fence. The plaintiffs failed, therefore, to prove that compliance with the statute which was indispensable to the creation of a lien. The specifications would have been no more defective if they had omitted all reference to the house, and stated the work contracted for to be painting the fence, and the price to be paid therefor the sum of one hundred and eighty dollars. i
      In cases arising under the mechanics’, lien law of Massachusetts, wherein a lien existed for labor performed but none for materials furnished, the supreme court of that state held that if labor and materials had been furnished and used in the erection of a building, under an ■entire contract, with no stipulation for any separate price for either, .and it is impossible to determine what part of the contract price is to be applied to either, and there is no mechanics’ lien for the whole, there can be none for a part (Morrison v. Minot, 5 Allen, 403; Brewster v. Wyman, Id., 405). The principle of those cases applies in this. No lien exists or is claimed for the work of painting the fence. Yet it is impossible to determine what part of the contract price should be applied on that work, and it is consequently impossible to fix the amount of the lien for the work on the house. The one hundred dollars paid on account, may have been more than enough to pay for the work on the house, and thus discharge the lien. It is impossible to fix the amount of any lien or to determine judicially that any has existed for the work on the house.
      The difference between the contract stated and that proved, is a very material one. Suppose the ordinary action had been brought by plaintiffs for work done and materials used in painting the defendant’s house, and on the trial it had been proved that the work was done and materials used under the contract proved in this case, to paint both the house and the fence, for a round price of one hundred and eighty dollars for the entire work, and that plaintiffs had wholly failed and refused to paint the fence, could they have recovered anything in such action ? Clearly not (Glacius v. Black, 50 N. Y., 145; Smith v. Brady, 17 Id., 173).
      It is not unjust or inequitable to require parties to comply strictly with the provisions of this statute, in order to acquire its benefits. TJnder it rights are claimed which are unknown to the common law, and are created solely by force of the statute. These rights may be enforced in a summary manner, and by proceedings different from those prescribed by the general laws for the enforcement of civil contracts. It is but just, therefore, that parties invoking the aid of such a statute ■should bring themselves strictly within its terms. This the plaintiffs have failed to do, and the judgment in their favor must be reversed, .and a new trial granted, costs to abide the event.
    
   Folgek, J.

We have read the testimony in this case with care. The motion for the dismissal of the complaint, on the ground that the plaintiff had made no adequate proof that the defendant ever employed him either directly or through an agent, was properly refused by the referee.

Although there was much contradiction of witnesses ; and the testimony of the principal witnesses was not in all things self-consistent, yet there was that shown from which the referee had the right to find directly, or as inference, that the plaintiff was employed by the defendant, or by her husband, as her agent.

Nor is there strength in the position, that as the conveyance of the premises was not delivered to the ■defendant until December 10, 1870, she did not become the owner until then, and that the premises were not subject to a lien for labor and material supplied to her before that date. She was the equitable owner of the premises, by a contract for the purchase thereof, as early as October 6, 1870 (Rollins v. Cross, 45 N. Y.; 766). We have held that a lien can not be acquired for work and materials furnished under a contract with the equitable owner, as against one holding the legal title unless the work or labor is furnished by permission of the latter. But we further held, that if the equitable owner permits the building to be erected, and before notice of lien filed, by the performance of a contract for purchase become the legal owner, the conveyance will be held to relate to the time when the contract of purchase was made, and such equitable owner to be within the statute. The facts of this case bring the defendant within the principle of that decision for all work and material furnished after the execution of the contract of sale.

I do not perceive that the referee made the error claimed by the defendant in his sixth point. It is true that Bramhall did authorize Gfodfrey to employ the plaintiff; but it was for a certain quantity of work specified and limited by him. It appears that the referee has deducted from the amount of the bill rendered by the plaintiff the second and third items thereof. It is probable from the testimony that this was the work ordered by Bramhall, and that this was all that he ordered.

There was no error prejudicial to the defendant in refusing the first amendment to the answer asked for by her counsel. He asked to amend by adding a denial that she was the owner of the house during the period from September 16 to December 10, 3870. Though the amendment was not granted, yet evidence was received which showed the exact status of the defendant for that space of time. The contract under which she became vendee was put in evidence, and all extensions of time for performance indorsed upon it. So was the deed toiler delivered in performance of the contract of sale, and proof of the day of delivery of it. Besides that, though the act under which the proceedings were instituted (act of 1863, ch. 500, p. 859, sec. 5) says that the court shall proceed without regard to matters óf form which shall be amenable at all times without costs while the proceedings progress, yet the issues which are to be tried are not matters of form ; they are of the-substance- of the litigation. The Revised Statutes and the Code of Procedure are very liberal in the power of amendments of pleadings which they give, yet it has-always been held that it was not an abuse of the discretionary power of the court to refuse an amendment of the pleadings which would introduce an entirely different cause of action or defense. And though they use the word “may,” while this act uses the word “ shall ” in giving the power of amendment, this difference of phraseology does not alter the discretionary power of the court. For this reason the referee was not in error in refusing the second amendment asked by the defendant.

Had it been formally suggested to him in her behalf, that she was an infant at the time of the trial, it would have been his duty, in accordance with the principles of the case cited by the learned counsel for her in this court, to have allowed such action as that fact demanded, so that she should be properly before the court. But there was no suggestion of such fact presented with verification, nor did the somewhat incongruous amendment proposed indicate that she was then nor at the commencement of the proceedings against her, a minor, and so improperly brought into court in person and not represented and defended by guardian ad litem; if there be practice for appointing such guardian for a minor, in proceedings under the act of 1863, which we will not now stop to inquire. From the language of the amendment proposed it would seem that she'had attained her majority. For it avers that since attaining her majority she has not ratified any alleged contract. The proposed amendment was then to set up infancy existing at the time of contracting for the work and material. This, too, it was in the discretion of the referee to refuse, as introducing an entirely new defense.

The defendant makes the point that, as the lien had expired before the referee made his report, there was no authority to render a personal judgment. It has been so held under statutes differing from this of 1863. There are provisions in this act which make a different conclusion necessary. The second section provides that all persons having liens, ir order to enforce the same, shall prove their demands in the same manner as in ordinary proceedings at law,. and shall have relief according to their rights as they appear in evidence-judgment is to be rendered according to the equity and justice of the claims of the respective parties among themselves, and against any owner, and so as to determine the rights of all parties and the amount due to each (§§ 5 and 7). It is declared that the contractor and the owner shall be personally liable to the lienor (§ 9). The same section provides that judgment may ■ be enforced by execution,'and the property on which i the lien is adjudged to rest may be sold thereunder, and personal liability may be enforced against the property of any person against whom a personal judgment may have been rendered. These provisions, be- j yond question, contemplate the proving of demands, | the giving judgment for them against the contractor or ) the owner personally, and issuing an execution thereon ^ against any leviable property of the judgment debtor. \

There must be shown to be a lien existing at the J time of the commencement of the proceedings. It is ) thus only that the court obtains jurisdiction. It thus ; acquires jurisdiction of the subject-matter and of the person, and then it may determine the entire contro- . versy. - It does not lose its jurisdiction of the whole matter, because from the length of time for which the proceedings have been pending, the lien, upon the existence of which the jurisdiction at first was based, has ceased. The whole case is before the court, and- it may proceed to give judgment upon the merits. It was so in the court of chancery. When it had acquired cognizance of a suit for t1-" purpose of discovery or injunction, it would, in most cases of account, when in full possession of the merits and with sufficient materials before it, re tain the suit in order to do complete justice between the parties, and to prevent useless litigation and expense (Armstrong v. Gilchrist, 2 Johns. Cas., 424, and note in Shepard’s Ed.). This rule had the limitation, that it must be a case in which the court of chancery could properly proceed to a judgment, i. e., where the assistance of a jury was not necessary. In a court which has powers at law, this limitation can seldom apply.

The objection of the defendant, however, goes farther than this. She claims that there is no proof that the labor and materials were all done and furnished within three months before the filing of the lien, and as to that portion thereof without the three months, there was at no time a lien, and being no lien, no jurisdiction acquired by the court as to that, and hence no power to give judgment thereon.

This point does not seem to have been raised before the referee. There is no exception to the report, which specially raises the question. The answer of the defendant, the course of the trial, and the exceptions to the report, show that the defense made was upon the ground that the defendant never employed the plaintiff,, and was, therefore, under no liability to him. The motion to dismiss the complaint presents grounds therefor, but neither of them is that taken for this point.. The referee has found, as a conclusion of law, that the plaintiff had a lien for the amount which the referee-found, as a conclusion of fact, was due to him. He-has found, as facts, that he did work and furnished materials to that amount, and has found no other facts-which, with the evidence in the case, tend to show that there was but one hiring, and that the work and materials furnished was under one contract, and was one continuous performance. It it appeared that the work and materials furnished was by piecemeal, and by different successive contracts, so that at the end of each plaintiff had performed his agreement and had a right of action therefor, the claim of defendant, that the time of filing his lien pro tanto had expired, would have some foundation. But this does not appear. Indeed, Godfrey testifies that he had a conversation with the plaintiff, in which he asked the latter what it would cost to do the work. This, it is inferrable, was before the work was done, and in contemplation of all that was to be done and of all that was done, and gives basis for the inference that it was one bargain. If so, then the plaintiff was within the provision of the statute, which permits the filing of a lien within three months after the work is finished or abandoned. If it was an entire work under one contract for all that was done, there was no finishing of it until all that was intended in the contract was performed. Had the point now made been raised before the referee, other evidence might have been produced; his findings would have been more specific, and his conclusions of law might have been different, or they might have been more fully sustained by the findings of fact. As it is, we are not able to say that the point made by the defendant is well taken.

The judgment appealed from should therefore be affirmed, with costs.  