
    Van Kannel Revolving Door Company, Respondent, v. W. & J. Sloane, Appellant, Impleaded with John Jacob Astor and Others, Defendants.
    (No. 2.)
    First Department,
    December 6, 1907.
    Mechanic’s lien—pleading — supplemental answer.
    A contractor, defendant in an action to foreclose a mechanic’s lien, should be granted leave to serve a supplemental answer showing that subsequent to the service, of his original answer,a prior trial had resulted in a judgment dismissing the complaint as to the owner, that the plaintiff had failed to appeal therefrom, and that the owner had subsequently paid the contractor a balance due, for said facts will be a complete defense, unless the plaintiff can establish that the money paid was impressed with a trust for his benefit.
    Patterson, P. J , and Houghton, J., dissented.
    
      Appeal by the defendant, W. &■ J. Sloane, 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 on the 14th day of August, 1907, as resettled by an order entered in said clerk’s office on the 23d day of August, 1907.
    
      Selden Bacon, for the appellant.
    
      Hector M. Hitchings, for the respondent.
   McLaughlin, J.:

This appeal is from an order denying a motion for leave to serve a supplemental answer, and was argued with the appeal from the order directing Sloane to pay into court a certain sum. of money. ( Van Kannel Revolving Door Co. v. Sloane, No. 1, 122 App. Div. 610.)

The facts involved on both appeals are substantially the same After the reversal of the judgment in so far as the same related to the defendant Sloane, it applied to the court for leave to serve a supplemental answer setting up specifically the fact that the action liad been tried and resulted in a judgment dismissing the complaint as to Astor; plaintiff’s failure to appeal therefrom; and the subsequent payment by Astor to Sloane of its-claim. Provision is made-in section 544 of the Code of Civil Procedure for the serving of a supplemental pleading. This section provides that upon the application of either party the court may, and- in a proper case must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made. The facts which were sought to be set up in the supplemental answer occurred subsequent to the service of the original answer. They were material and necessary to be alleged in order to enable - Sloane to prove them. The facts proposed to be set out in the supplemental answer will, under our former decision, constitute a valid defense to the plaintiff’s claim, unless it can show that when the payment was made the money was impressed with a trust and was intended to take the place of the lien on the land.. Indeed, Ido. not .see'how the plaintiff is in a position, without serving a supplemental complaint, to maintain the action, it having, by failing to appeal from the judgment against Astor, relinquished its lien upon the land. But, however this may he, the defendant Sloane, as it seems to me, has an absolute right to have its answer put in such shape as will enable it to prove facts which will constitute a perfect defense to the action, unless the plaintiff can establish that, by reason of the existence of other facts, such defense ought not to prevail.. .

The order appealed from, therefore, should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham and Scott, JJ., concurred ; Patterson, P: J., and Houghton, J., dissented.

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