
    Paul E. Lindblad and Hugo Von Hagen, Respondents, v. Elizabeth B. Lynde, Appellant.
    
      Mechanic’s lien—a complaint for its foreclosure alleging peifoi'mance—rejection of evidence excusing non-performance—order a/mending the complaint “without prejudice to proceedings already had ” — terms which should he imposed.
    
    The complaint in' an action brought' to foreclose a mechanic’s lien alleged that the plaintiffs had fully performed their contract. Upon the trial the plaintiffs sought to introduce evidence excusing their failure to make full performance of the contract and, upon the exclusion of such evidence, obtained an adjournment of the trial for two weeks in order to enable them to move to amend their complaint. They did not avail themselves of the privilege granted, but elected to proceed with the trial.
    Upon the renewal of the trial they again unsuccessfully attempted to introduce evidence excusing the failure to make full performance, and the court, on their application, sent the case to the general calendar upon payment of thirty dollars costs and granted them leave to move at Special Term for an amendment of the complaint. The plaintiffs paid the thirty dollars costs and made a motion at Special Term to amend the complaint. The Special Term granted the motion “without prejudice to proceedings already had,” on condition that the plaintiffs should pay ten dollars costs.
    
      Meld, that the motion was properly granted, but that, the court should, as a condition of permitting the amendment, have required the plaintiffs to pay all costs and disbursements subsequent to the service of the complaint;
    That, so far as the provision of the order, “without prejudice to proceedings already had;” permitted the case to hold its present position oh the calendar, it was proper, but that, if it was intended thereby to permit the testimony already taken in the action to stand, it was improper in that it affected the substantial rights of the defendant.
    Van Brunt, P. J., dissented.
    Appeal by the defendant, Elizabeth B. Lynde, 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 13th day of ..February, 1903, allowing the plaintiffs.to tile and serve an amended complaint.
    
      Henry A. Forster, for the appellant.
    
      Gilbert Ray Hawes, for the respondents.
   O’Brien, J.:

The action is to foreclose a mechanic’s lien. The parties entered into a building contract whereby the plaintiffs agreed, for the sum of $13,132.60, to-erect and finish an extension to and make certain alterations in the defendant’s house. The complaint alleged full performance of the contract and specifications, and states that there has been paid to the plaintiffs for their work $16,185.25, and that there is still due them for extra work $2,599.90, to recover which sum this action is brought. The specifications contained. the" provision that no extra charge will be allowed unless ordered by the owner in writing, and unless prices are agreed upon in writing, and in that event it must be specially, stated, that the work to be done is an extra.” The defense was non-performance of this condition.

Proceeding upon the theory alleged in the complaint, of full performance, the case was reached for trial; but, instead of sustaining the allegations in support of this theory, the' plaintiffs sought to introduce parol evidence of excuses and reasons for non-performance and. of waivers of performance. Such evidence was excluded, and then, at the plaintiffs’ request, the trial was adjourned for two weeks to enable them to amend their complaint. Thereafter some efforts were made to reach a settlement. These, however, resulted in failure, and the plaintiffs, instead of availing themselves of their privilege of moving to amend the complaint, elected again to proceed with the trial.

On' the renewal of the trial the attempt to introduce evidence showing grounds for non-performance was again unsuccessful, and such evidence was again excluded. The court, instead of dismissing the complaint, sent the case back, on the plaintiffs’ application, to the general calendar upon payment of thirty dollars costs, with leave to move at Special Term for an amendment of the complaint. These costs were paid to defendant, and thereafter this motion to amend was made and granted upon the following conditions, viz., on payment of ten dollars costs of this motion, “ without prejudice to proceedings already had.”

As said in McEntyre v. Tucker (40 App. Div. 444): “ It seenis to us that the terms upon which the motion was granted were entirely inadequate. It is conceded by the motion that the plaintiff cannot recover in the present form of action. The defendant was, therefore, justified in defending; and for the costs and disbursements to which he has been put in the establishment of a successful defense he is entitled to be reimbursed.” (See, also, as to terms which should be imposed, Fox v. Davidson, 40 App. Div. 620; Bates v. Salt Springs Nat. Bank, 43 id. 321.) We think, therefore, -that the court should have required, as a condition of the amendment, the payment of all costs and disbursements subsequent to the service of the complaint to be taxed.

We also think, upon the facts here appearing, that it was improper to grant the motion without prejudice to proceedings already had.” Prior to the amendment of section 723 of the Code of Civil Procedure in 1900 (Laws of 1900, chap. 591) a provision of this kind in an order was unauthorized, and although the insertion of such a condition is now discretionary, this necessarily means legal discretion. So far as this provision permits the case to hold its present position on the calendar we have no criticism to make ; but if it is in tended thereby to permit the testimony already taken in support of the old cause of action to stand, it should not upon the facts here appearing be allowed, as this would affect a substantial right.

The order should .accordingly be modified by imposing costs and disbursements as above indicated and by requiring the plaintiff upon the new issues to try the case de novo, and as so modified affirmed, without costs to either party upon this appeal.

Ingraham, McLaughlin and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J.:

I think the motion should have been denied.

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