
    STEPHEN R. FRAZIER, Respondent v. HENRY J. McGUCKIN, Impleaded, et al., Appellant.
    Trial—Defences not alleged in the answer when available—Lienor’s action against owner, what provable in defence—Evidence.
    
    Where a trial proceeds upon the assumption that the action is brought on a certain cause of action, which is not the cause of action alleged in the complaint, defences applicable to the causes of action upon which it is assumed that the action is brought, although not set up in the answer, are provable; .and if evidence tending to establish them is excluded under objection and exception it is cause for reversal.
    In an action brought by a lienor against an owner to recover for materials furnished to a contractor on the ground that at the time of tiie filing of the notice of lien there was a sum due by the defendant owner to the contractor, the defendant owner may show in defence, that the contractor had not completed the work and the amount of work uncompleted, the cost of completing the work and payments made to the contractor on account of the contract.
    Before Truax and Dugro, JJ.
    
      Decided April 7, 1890.
    Appeal from judgment entered on the report of a referee. The facts sufficiently appear in the opinion.
    
      
      A. H. & W. E. Osborn, attorneys and of counsel for respondent, as bearing on the questions considered in the opinion, argued :—
    I. While the McGuckin-Douglas contract remained in force the plaintiff’s recovery for the value or price of the materials furnished was limited only by the amount which had at the time of filing the lien been earned by the contractor, remaining unpaid, whether then payable by the terms of such contract or not. Van Cleef v. Van Vechten, 48 Hun, 304; Wright v. Roberts, 43 lb. 413; Graf v. Cunningham, 109 N. Y. 369 ; Heckman v. Pinckney, 81 lb. 211. An amount had been in fact earned and remained more than sufficient to pay all the liens, and the plaintiff is entitled to recover.
    II. The referee was right in excluding all evidence of payment to other parties, and of the 'furnishing of material by other parties after the execution of the release by Frazier for Douglas. The defence was wholly outside of the issues raised by the answer. The answer did not set up, except by denial, the failure of ICirchner to complete; did not set up any finishing by the owner and moneys paid, laid out and expended on such finishing after the failure by Kir timer, nor that other parties furnished the material with the consent of Kirchner and of Douglas, and were paid with their consent; did not set up a breach of contract and damages and contained no offset, recoupment or counter-claim. The defendant relied entirely on his accord and satisfaction with Douglas, and the necessity of proving payments after the release to reduce the amount due never entered his mind ; plaintiff proved conclusively that the release was never intended to and did not affect their rights in the least. The proof offered was entirely new matter and should have been pleaded. The answer must contain a statement of any new matter constituting a defence to allow the introduction, of proof. Code, § 500. The words must contain are imperative. McKyring v. Bull, 16 N. Y. 297. The answer must allege all those facts which defendant must prove to defeat a recovery, when the allegations of the complaint are admitted or proved. Catlin v. Gunther, 1 Duer, 253, 266 ; Ayrault v. Chamberlain, 33 Barb. 229; Crane v. Forbes, 4 E. D. Smith, 448; Bliss Code, Vol. 1, p. 366. A defendant cannot give evidence of new matter not stated in his answer. Dieffendorf v. Gage, 7 Barb. 18 ; Kelsey v. Western, 2 N. Y. 501; Wright v. Delafield, 25 lb. 266; Truesdell v. Sarles, 104 lb. 167.
    
      Daniel P. Mahony, attorney and of counsel, for appellant, on the questions considered in the opinion, argued :—
    I. That the claim of a sub-contractor is subject to all equities between the original contractors is a principle, too well established in the law of mechanics’ liens to allow dissent. Carman v. McIncrow, 13 N. Y. 70. Denio, J., page 73; Smith v. Brady, 17 lb. 172 ; Lombard v. R. R. Co., 55 lb. 491. Grover, J., page 494 ; Crane v. Genin, 50 lb. 127. Folger, J. pages 130-131; Payne v. Wilson, 74 lb. 348; Kenny v. Apgar, 93 lb. 539; Gibson v. Lenane, 94 lb. 183 ; Morgan v. Stephens, 6 Abb. N. C. 256; McDougall v. Nast, 5 N. Y. St. Rep. 144 ; Lind v. Braender, 7 N. Y. Supplement, 664; Jenks v. Brown, 66 N. Y. 629.
    II. The right of enforcement depends upon the right of the contractor to recover in an action of assumpsit. Kneeland on Mechanics’ Liens (2nd ed.) § 60 et seq. In fact, this right must be first affirmatively proven before sub-contractors can claim the benefit of the act. Wait’s Actions and Defences, vol. 4, 327; Kneeland, § 75; Sheffield v. Loeffler, 20 State Rep. 890; Heckman v. Pinkney, 81 N. Y. 
      211; Graf v. Cunningham, 109 lb. 369 ; Powers y. City of Yonkers, 114 lb. 145; Vann, J., page 153; Foster v. Schneider, 19 State Rep. 449; Larkin v. Mullen, 12 lb. 123; Grant v. Vandercook, 8 Abb. (N. S.) 455; Wright v. Roberts, 43 Hun, 413; Lind v. Braender, 7 N. Y. Supp. 664 ; Riggs v. Chapin, 7 lb. 765. The rulings of the referee in excluding evidence were erroneous. The recent case of Lind v. Braender [7 N. Y. Supplement, 664] decided by the general term of the Common Pleas, December, 1889, is directly in point.
   By the Court.—Dugro, J.

From the complaint, it seems, a recovery is sought by the plaintiff upon an alleged agreement, whereby the defendant,- McGuckin, assumed to pay the plaintiff’s claim; for, after alleging the mutual recission 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 defendant should have been permitted to show in defence (although not alleged in the answer), that the contractor had not completed the work; the amount of the 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 defence was excluded by the referee. Notably 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.

Tbuax, J., concurred.  