
    Kalt Lumber Company, Appellant, v. Frank J. Dupignac and Hattie Mullin, Defendants, Impleaded with Edwin Morgan, Respondent.
    First Department,
    May 3, 1912.
    Pleading — complaint in siiit to foreclose mechanic’s lien — amendment.
    .A complaint in' a .suit to foreclose a mechanic’s lien may "be amended under section 723 of thei Code of Civil Procedure so as to include an allegation that “.no other action has been had for the recovery of the said sum of money or any part thereof.”
    The present tendency is to construe pleadings liberally and permit amendments whenever necessary in order to enable a party to present at the trial his alleged cause of action or defense..
    Scott, J., dissented.
    Appeal by the plaintiff, the Kalt Lumber Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York oh the 25th day of March, 1912, denying the plaintiff’s motion for leave to amend the complaint.
    
      Maurice B. Rich, for the appellant..
    
      Gordon S. P. Kleeberg, for the respondent.
   McLaughlin, J.:

Action to foreclose a mechanic’s lien. The judgment demanded is a foreclosure and sale and appropriate facts are set forth in the complaint necessary to maintain such action, except the omission of an allegation that “no other action has been had for the recovery of the said sum of money or any part thereof.” The omission of such allegation made the complaint demurrable in so far as it was sought to foreclose the lien. (Schwartz v. Klar, 144 App. Div. 37.) When the case came on for trial the defendant moved to dismiss the complaint upon the ground that owing to the omission of the words quoted it did not state a cause of action in equity triable at Special Term. The trial court thereupon sent the matter to the Special Term for the purpose of determining whether or not it would permit an amendment. Subsequently an application was made at Special Term to so amend. The motion was denied and plaintiff appeals. The application to amend was denied upon the ground, as appears from the opinion of the learned justice sitting at Special Term, that to permit the amendment would be to change a cause of action at law to one in equity and also in violation of the Lien Law, by permitting the commencement of an action to foreclose a hen after the expiration of the time therein specified. The complaint shows, without the amendment, the purpose of the action. The allegation sought to be added is made material by a rule of pleading. Its truth is not disputed nor is the claim that there are no subsequent lienors or other parties whose equities will _ be affected, unless it be the defendant, by permitting the collection of a debt out of specific property. It is perfectly obvious that the omission of such an allegation was not by design, but either an . error as to what a complaint for the foreclosure of a lien had to contain, or by oversight. This follows from the other allegations, which would be inappropriate if a money judgment only were sought.

The court has inherent power tó permit á pleading' to be amended if it be necessary in order to do justice between the parties to the action, and it is expressly given power for that purpose by section 723 of the Code of Civil Procedure, which provides that “the court may, upon the trial or at any other stage of the action before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any * * * pleading * * * by inserting an allegation material to the case.” The amendment, strictly speaking, does not change the cause of action. Whether prosecuted in equity for the foreclosure of a lien or at law for the recovery of a sum of money only, the cause of action is to recover the purchase price of lumber sold and delivered. The remedy is different. In one case, if plaintiff obtains a judgment, he enforces collection by selling specific property, and in the other by selling any property of the defendant.

But even if the amendment did change the cause of action, the court, under the facts here presented, had the power to permit it. (Deyo v. Morss, 144 N. Y. 216; Dunham v. Hastings Pavement Co., 109 App. Div. 514; Truman v. Lester, 71 id. 612.)

Nor would the amendment violate any provision of the Lien Law (Consol. Laws, chap. 33 [Laws of 1909, chap. 38], as amd.) by permitting an action to be commenced to foreclose a lien after the time to do so had expired. The action was commenced within the time provided. The notice of lien is made a part of the complaint and the allegation is that such notice was filed in the clerk’s office in the county of New York within ninety days after the delivery of the lumber. The judgment demanded is that the lien be foreclosed. The present tendency is to construe pleadings liberally and permit amendments whenever necessary in order to enable a party to present at the trial his alleged cause of action or defense.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, on payment of ten dollars costs of opposing motion and a trial fee of thirty dollars,

Ingraham, P. J., Clarke and Dowling, JJ., concurred; Scott, J., dissented. ’

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  