
    Armin Fraenkel, Plaintiff, v. Jonathan Friedman, Defendant.
    (Supreme Court, New York Special Term,
    March, 1908.)
    Mechanics’ liens — Foreclosure — Pleading — Amendment.
    In an action by a contractor against the owner to foreclose a mechanic’s lien upon a building erected in the city of New York, where the plaintiff alleges performance of the contract, but it appears upon the trial that the contract was not performed according to its terms in all particulars and that a deviation from the contract in one particular led to the filing by the bureau of buildings of violations of the building code which are still in force, a motion by the -plaintiff at the end of the trial to amend the complaint, so as to allege a substantial compliance with the contract and a waiver by the owner of a strict compliance, should be denied.
    Action to foreclose a mechanic’s lien. The opinion states the case.
    S. J. Cohen (Thos. C. Ennever, of counsel), for plaintiff.
    Levi, Weil & Newhouse (A. C. Weil, of counsel), for defendant.
   Hendrick, J.

This is an action to foreclose a mechanic’s lien. The action was upon a contract for the performance of certain work and materials in making alterations of the premises Ho. 635 East One Hundred and Thirty-fifth street, in Hew York city. The complaint alleges that, prior to the filing of the notice of lien claimed, the plaintiff had performed all of the work and furnished all of the material required to he performed and furnished under the contract, and fully completed the contract. It developed upon the trial that the plaintiff was unable to establish a compliance by himself with the terms of the contract, and in lieu thereof he attempted to prove a substantial compliance. It appears from the proofs which were offered that there were substantial deviations from the contract, and that some of these deviations led to the filing by the bureau of buildings of violations of the building code. One of these violations was filed because of the fact that, at the time certain beams were first inserted, there was a bearing of one or two inches only on the flange, whereas the specifications required a four-inch bearing. Plaintiff claims that this defect was corrected by riveting an iron plate four inches in length to the beam. It does not appear that the plaintiff obtained the sanction of the department of buildings to this method of doing the work; and, after several reinspections of the work by the department, the violation was held to he still in force, and it is now on file and in the hands of the corporation counsel of the city of Hew York for prosecution. There are several other deviations from the contract, some of minor importance; and proof was offered.upon the trial tending to prove that the defendant had waived the strict compliance with the contract, and had, in most instances, assented to the deviations,, which were established. It was conceded, however, at the close of the trial, that, in some 'particulars at least, the contract had not been fulfilled by the plaintiff. At the end of the trial the defendant moved to dismiss the complaint on the ground that the plaintiff had failed to establish the performance of the terms of the contract in that he had not done the work and furnished the material provided for in the contract, the plans and the specifications, and had not established the canse of action alleged in the complaint. Thereupon the plaintiff moved to amend the complaint, so as to allege in substance a substantial compliance with the terms of the contract and a waiver by the defendant of a strict compliance with the terms of the contract. This motion was opposed by the defendant, who claimed surprise. The court has no power to grant such an amendment at the close of the trial; the recovery must be, if at all, secundum allegata et probata. It follows that the complaint must be dismissed.

Complaint dismissed, with costs.  