
    Edward R. Poerschke, Respondent, v. Philip Horowitz and Others, Appellants.
    
      Foreclosure of a mechanids lien — allegation that the plaintiff 7i«s “furnished all the materials and performed all the labor under his said contract ” — amendment alleging the substitution of other materials for those called for by the contract— necessity of such amendment where a provision of the contract authorizes alterations in the woi'k.
    
    The complaint in an action to foreclose a mechanic’s lien for work done by the plaintiff under a building contract alleged the making of the contract and two modifications thereof; also that the plaintiff “furnished all the materials and performed all the labor under his said contract as modified, and in all things duly performed all conditions of said contract as modified, by him to be performed.”
    The answer put in issue the performance of the contract by the plaintiff, and set up a counterclaim arising out of the use by the plaintiff, in the prosecution of the work, of different materials than those specified in the contract. The contract, which was made a part of the answer, provided, “ should the owner at any time during the progress of the said building, reguest any alteration, deviation, additions or omissions from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.”
    
      Held, that the court had power to permit the plaintiff to amend his complaint upon the trial by alleging therein that the substitution of certain materials, substantially those alleged in the defendants’ counterclaim, was made with the consent and by the direction of the defendants;
    That the defendants, having made no request to have the amended complaint formally served upon them, or for leave to plead thereto, or any application to the court for an adjournment on the ground of surprise, the court was j ustified in permitting the trial to proceed.
    
      Qumre, whether evidence of the facts set up by the amendment was not admissible under the original complaint.
    
      Where, upon an appeal from a judgment, the only error found therein is a clerical error of §200, which could have been corrected on motion, the court will'modify the judgment by deducting therefrom the $200 erroneously included therein, but will not award costs to the appellant.
    Ingraham and McLaughlin, JJ., dissented.
    Appeal ■ by the defendants, Philip Horowitz and others, from a judgment .of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 30th day of January, 1903, upon the decision of the court rendered after a trial at the H ew York Special Term in an action' brought to fore close a mechanic’s lien.
    
      Jacob Ma/nheim, for the appellants.
    
      William 11. Hill, for the respondent.
   Laughlin, J. :

This is an action to foreclose a mechanic’s lien. It is alleged in the complaint that on the 25th day of June, 1901,. the appellants Philip and Meyer Horowitz entered into a contract in writing with the respondent by which the latter agreed to furnish, the material and perform the labor required in and about the “ mason work, marble tiling, plastering, concrete, etc., .furnish all materials and other work ” mentioned in the plans and specifications annexed to-. the contract for the construction of. a new building at Hos. 54 and 56 Eldridge street in the borough of Manhattan, Hew York, the premises being owned by Philip Horowitz. The consideration to be paid for the complete performance of the contract was $16,400. T.wo modifications of the contract by agreement of the parties are expressly pleaded in the complaint. The one by which extra work in connection with the dumbwaiter at an agreed price of fifty dollars was done, and the other by which the tile work was to be omitted and performed by the owner on the understanding that there should be a reasonable deduction therefor from the contract price. .

The only questions arising on the appeal that require considera* tion are those relating to certain amendments of the complaint setting forth other modifications of the contract and specifications by agreement of the parties under which there, was a substitution of. material in four respects. The court refused to allow the plaintiff to prove, under the complaint as framed, that the substitutions were made with the consent and by the direction of the owner and his associate contractor. In effect the objections to the amendments challenge the power of the court on the trial of the issues to allow the same, but no claim was made that the defendants were not prepared to meet the issues tendered by the amendments, except that counsel stated, “We did not come here to try any such new issues,” and “ I plead surprise.” Ho request was made to have the complaint formally amended and served or for leave to plead thereto ; nor was any application made to the court for an adjournment on the ground of surprise.

The contract was neither set out in the complaint nor annexed thereto. After alleging the making of the contract and the two modifications referred to, the complaint alleges that the plaintiff furnished all the materials and performed all the labor under his said contract as modified, and in all things duly performed all conditions of said contract, as modified, by him to be performed.” The contract is annexed to and made a part of the answer. It provides, among other things, that “ should the owner at any time during the progress of the said building, reguest mvy alteration, deviation, additions or omissions from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.” The specifications annexed to the contract require, among other things: (1) That all brick should be new Haverstraw brick; (2) that certain floors should be constructed with “ Rapp’s Patent System of Eire Proofing; ” (3) that the front, rear and side walls should be lathed with spruce lathing; and (4) that the walls of the kitchens and' bathrooms should be “ treated with Ho. 1 a superfine Keene’s cement.” The amendments to the complaint allowed upon the trial charged that the contract was further modified by consent of the parties: (1) By permitting the respondent to use a certain number of second-hand brick; (2) by requiring him to use other fireproofing instead of Rapp’s system; (3) by requiring that the lathing on the outside walls be omitted and the plaster applied directly to the wall; and (4) by requiring other cement to be substituted for Keene’s. The answer of the contracting parties put in issue, among other things, the performance of the contract by the plaintiff, and set up a counterclaim for, among other things: (1) The use of the old bricks; (2) the use of fireproofing other than Rapp’s patent system ; (3) the failure to lath the outer walls; and (4) the failure to use Keene’s cement in the kitchens. ' It thus appears that the parties to the contract who are appellants set up specifically as their defense the substitution of materials concerning which the plaintiff was allowed to amend upon the trial, ' The plaintiff gave evidence tending to show that all of these changes were not only made with the consent of the owner and his associate contractor on the one.side but by their direction and for their benefit.

' This court has recently had occasion to consider and determine the authority of a referee or court upon the trial to permit amendments to the pleadings in a case quite similar to this. (Perry v. Levenson, 82 App. Div. 94.) We there held that “the only limitation upon this authority seems to be that the amendment shall not change substantially the cause of action or embrace a new one ” and cited cases sustaining that rule, which it is unnecessary to consider anew. That, was an action to foreclose a mechanic’s lien and the principal questions presented related to the power of a referee to allow amendments upon the trial showing modifications and omissions from the plans and specifications. There, as here, the contract contained a clause authorizing the owner to require changes, alterations and omissions,-and we held, it being the duty of the contractor to make such deviations from the plans and specifications as should be directed or required .by the owner, that proof of modifications or omissions made by the direction of the owner was but proof of the performance of the contract; • and that at, most the amendments of the complaint, setting forth such modifications or omissions, merely made the complaint more definite and certain concerning the allegations of performance of the contract. The action, is still upon the contract as alleged. If the owners had set up the failure of the plaintiff to make changes and alterations in ■ the work or substitution of materials as directed by them, proof of this under such a .contract would constitute a defense,: because it was the express contract duty o"f the plaintiff to make such changes and alterations. By these amendments and the evidence received thereunder no new cause of action is alleged or proved nor is the cause of action originally pleaded substantially changed. It is manifest, therefore, that these amendments, if necessary at all in the absence of a motion to-make the complaint more definite and certain with respect to the allegations of performance of the contract, were such as the court was authorized to make upon the trial. The record discloses nothing to indicate that this was not a proper case for the allowance of the amendments. The effect of the amendments was to relieve the owner and his associate contractor from proving the changes and modifications set up in their answer. The plaintiff in effect conceded their claims in that regard, but proposed to show that the changes were made by their direction and consent, and did so by satisfactory evidence. This evidence consisted of interviews between the plaintiff and the owner, who was in court, and was examined fully and was manifestly as prepared then as he ever could be to meet it.

Counsel for the appellants points out a clerical error in the decision by which the judgment has been authorized for $200 more than was intended. The court found that the plaintiff had done extra work of the value of $50 for which he had not been paid, that the final installment of $4,000 had not been paid on the contract, and that there should be deducted from the contract price the sum of $1,377, the fair and reasonable value of the work omitted and of deductions on account of changes and alterations. It is recited in the decision that there is now due plaintiff on account of the said contract the sum of Four thousand and Fifty dollars (the last payment under said contract together with the Fifty dollars for extra work) less the sum of One thousand three hundred and seventy-seven dollars, * * * making a balance of Two thousand eight hundred and seventy-three dollars, with interest thereon from the 6th day of April, 1903.” Judgment was directed for this amount with costs, including an extra allowance, and the judgment was entered accordingly. The balance was only $2,673, not $2,873 as stated. This, like the date from which interest is allowed, is manifestly a clerical error which could and should have been corrected by motion. The failure of the appellants to pursue that inexpensive remedy justifies us in not awarding them costs, there being no other error found; but it does not warrant a refusal to correct the judgment.

The judgment should, therefore, be modified -by deducting $200 and interest thereon from the 6th day of April, 1902, to the date of the entry of judgment, and as so modified affirmed, without costs.

O’Brien, J., concurred; Patterson, J., concurred in result; Ingraham and McLaughlin, JJ., dissented.

Ingraham, J. (dissenting):

I dissent. I think that, assuming that- the court would have the power upon the trial to allow such an amendment to the complaint as was allowed in this case,, the defendants were entitled to have the amended Complaint served to which they had a right to answer. The action was based upon the completion of a contract, with the exception of certain specified items. That was denied by the defendants. Upon the trial it appeared that the contract had not been completed in other particulars than those specified; and the plaintiff was allowed to amend the complaint which substituted for the completion of the contract as alleged a waiver of its completion in certain important particulars. Under those circumstances, before the defendants could be called upon to try the case, they were entitled to have the complaint upon which the cause of action was based served upon them, with the right to answer and properly prepare to try the issues then presented.

For this reason I think the judgment should be reversed..

McLaughlin, J. (dissenting) :

It is conceded in the prevailing opinion that-- the' judgment appealed from is erroneous, at least to the extent of $200, and that it should-be modified by deducting this sum, and yet notwithstanding this fact it is proposed to make the appellants - pay the costs of the appeal by way of punishment for appealing, it being suggested that the proper practice should have been by motion instead of appeal: This is to be done upon the theory that the $200 to be deducted was included in the judgment by a clerical error. But this fact does not appear, and if it did it was an error committed by respondent’s attorney and not by the appellants. The judgment follows the decision in this respect, and it is difficult to see how a motion to correct the judgment would have cured the error. Hot only this, but the respondent’s attorney insists upon the appeal, in the' brief presented, that “ the findings of the Court on the facts should not be disturbed,” and that “ the judgment should be affirmed.” Nor do I think the proper practice would have been by motion instead of appeal. Where a judgment is erroneous the Code of Civil Procedure (§ 1294) gives to the party aggrieved the right to appeal. The appellants exercised this right' and ought not- to be punished for doing what the statute authorizes. For these reasons I do not think the appellants should be required to pay costs:

' "Upon the merits of the appeal I am of the opinion that the judgment should be reversed and a new trial ordered. The complaint, after stating the execution of the contract by which the plaintiff agreed to erect for the defendants Horowitz a building according to certain plans and specifications, alleged that the plaintiff “ duly performed all conditions of said contract” except in two respects, in which modifications were set out. The answer denied that the plaintiff had performed the contract on his part, and, as a separate defense and by way of counterclaim, alleged plaintiff’s failure to perform, and stated in what respects such failure consisted, among others, ■(1) the use of old bricks instead of new ones; (2) the use of inferior fireproofing and cement ; and (3) failure to lath walls. Plaintiff ■served a reply in which he denied “ each and every allegation ” of the answer which purported “ to set up a counterclaim.” The issue thus presented was whether plaintiff had performed his contract, and it was upon this issue that the parties went to trial. During the course of the trial it appeared that the plaintiff had not performed his contract in that he had used 172,000 old bricks instead of new ones, inferior cement and fireproofing, and had not lathed ■certain walls, but it was claimed that a recovery could nevertheless be had because the contract had been modified, in this respect and amendments of the complaint were permitted, against the objection and exception of defendants, so as to admit proof showing such modification. The proof admitted on the part of the plaintiff, which was denied by defendants, was to the effect that the defendants or their superintendent had orally agreed to these changes.

That the court had the power to permit the amendments cannot seriously be questioned, but it seems to me upon the facts presented the power ought not to have been exercised. The plaintiff knew when he served his reply that.' he had not performed the contract. Defendants had so alleged in their , answer, and had pointed out the particulars in which the contract had not been complied with, and yet the plaintiff insisted that he had, and it was not until the trial had actually been entered upon that a recovery was sought upon any other ground than that of strict performance of the contract. The purpose of a pleading is to notify the opposing party of the precise ground upon which a recovery will be sought upon the one hand, or defeated upon the other. This purpose is ineffectual if a party can allege strict performance in his complaint and at the trial have a recovery for non-performance upon the theory that there was a waiver, or, in the language of Judge Earl (Southwick v. First Nat. Bank of Memphis, 81 N. Y. 420): “ If a party can allege one cause of action and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adver sary:” A pleading ought not to be amended at Trial Term, except as to some feature of the case which .lias been unexpectedly developed duilng the course of the trial. (Rhodes v. Lewin, 33 App. Div. 369.)

For these reasons I dissent.

Judgment modified as directed in opinion, and as modified affirmed, without costs.  