
    Edward Rowe, Respondent, v. Isabel H. Gerry, Respondent, Impleaded with. The McConnell Manufacturing Company and Others, Appellants, and Others, Defendants.
    (No. 2.)
    Second Department,
    November, 1905.
    Costs — when costs of former trial not "taxable after amendment of pleading conditioned on payment of costs. " "
    When plaintiffs have been allowed to amend their complaint so as to set up a new cause, alleging substantial performance instead of complete performance of a building contract, and such amendment Was conditioned on the payment of “all costs and disbursements subsequent to.the service of the complaint herein,” etc., they are not.entitled to tax the costs of the former action, although the judgment in their favor was reversed with “costs to abide .the final award of costs.” ,
    Appeal by the defendants, The McConnell Manufacturing Company and others, from-an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of January, 1905, denying the said defendants’ motion for a retaxation of costs.
    
      J. Mortimer Bell, for the appellants.
    
      Henry G. K. Heath, for the respondent Isabel H. Gerry.
   Woodward, J.:

The plaintiff as the assignee of the contractor and the defendants McConnell Manufacturing Company, Jacob Haag, George Hirscli, East Norwalk Lumber Company and William Edinger, as sub-eon-tractors, all ‘lienors, began an action in December, 1901, to foreclose a certain mechanic’s lien upon the property of the defendant Isabel H. Gerry. The complaint alleged full performance of the contract, and the trial, resulted in a judgment in favor of the lienors, which was subsequently reversed upon the ground of error in the admission of evidence intended to support an action for substantial performance of the contract. (86 App. Div. 349.) The order of reversal granted a new trial, with costs- to abide the final award of costs.” Subsequently the lienors moved the court for permission to amend their complaint, setting up substantial performance of the contract, and this motion was granted upon condition that the lienors should pay all costs and disbursements subsequent to the service of the complaint herein, and also the costs and disbursements of appeal to the Appellate Division, to be taxed by the clerk of this court.” : The lienors accepted this order and proceeded to trial under their amended complaint, and the trial resulted in a judgment in favor of the plaintiff and other, lienors. The question presented on this appeal is whether the lienors are entitled to tax as a part of their costs in the last action the costs and disbursements upon the previous trial and upon appeal to the Appellate Division, and to the costs of the new trial under section 3251 of the Qode of Civil Procedure.

We are of opinion that the plaintiff and his fellow-lienors, by accepting a favor upon the terms named by the court, without appeal, waived any right to tax the costs which had accumulated prior to the granting of the order. As the case stood at the time of the motion they had no cause of action upon which they could recover; the'order granting permission to amend the complaint gave them the first- right to recover. It was, in effect, setting up a hew cause of action, just as much as though they had abandoned their case "and started anew, and haying accepted this favor on the •terms named by the court, it is difficult to understand now how they can be entitled to impose' the costs of an entirely useless litigation upon the defendant Gerry. She had a perfect defense to the cause of .action set up in the complaint; she had a perfect right to avail herself of a technical defense, and having succeeded in her defense, she was fairly- entitled to 'costs in that action and upon appeal, which appeal was made necessary by the error of the learned referee upon the trial. The lienors did not elect to have a new trial of the cause of action set forth in their pleadings as they existed at the time the appeal was disposed of; they did not even move for an amendment of the pleadings in a mere matter of detail not affecting the merits of the case, but they asked and received permission' to set up in effect a new and different cause of action, thus practically abandoning their rights under the order of reversal, and by this action "they elected to pay the costs imposed as a condition by the court and to stand upon their rights under the plea of substantial performance. Upon this new issue they have succeeded, and they are entitled to their costs in this action, but they have no right to go back and collect costs upon a cause of action in which they were defeated. This is clearly the law as laid down by the cases in this State. (Fox v. Davidson, 40 App. Div. 620 ; McEntyre v. Tucker, Id. 444; Lindblad v. Lynde, 81 id. 603, 605, and authorities there cited.)

The order appealed from should be affirmed, with costs.

Bartlett, Rich and Miller, JJ., concurred;

Order affirmed, with ten dollars costs and disbursements.  