
    Henry B. Hondorf, Resp’t, v. Silas Atwater et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1894.)
    
    1. Mechanic’s lien—Assignment.
    An assignment by a contractor of his interest in the contract is ineffectual as against a lien for materials previously filed.
    2. Same—Pleadings and pkoof.
    The admission of proof, without objection, in support of a claim does not dispense with the necessity of alleging it in the answer.
    3. Same—Amendment.
    Such allegation cannot be added by amendment on appeal.
    Appeal from a judgment in favor of some of the defendants.
    
      John J. Snell, for appl’ts; James M. K O' Grady for resp’ts.
   Bradley, J.

The controversy is mainly between Atwater, Armstrong & Clarke, the appellants, and Maher & Glasgow, the respondents. The assignment made to the appellants by Evans & Grant of their interest in the claim transferred to them by Hondorf was effectual as against any lien subsequently filed. Stevens v. Ogden, 130 N. Y. 182 ; 41 St. Rep. 331. The subject of inquiry is, (1) what was the amount of such interest of Evans & Grant at the time of the assignment? (2) Was it made prior to the time the respondents’ lien was filed ? It appears by this evidence, and the court found, that at the time of the transfer by Hondorf to Evan & Grant, in July, 1891, he owed them $1,421.-97 ; that he then made to them two assignments of claims on account of such indebtedness; one of them was that before mentioned ; that the sum of $800 was allowed to them on the other assignment in an action having relation to it; and that, before they made the transfer to the appellants, the Sibley trustees had paid to Evans &'Grant the sum of $400, embraced in the claim so assigned by Hondorf to them, leaving only $221.97 of his indebtedness to them unpaid. The consequence was that the last mentioned sum was the extent of their interest in the claim so assigned to the appellants at the time it was made.

Whether or not the transfer to the appellants was made before the lien of the respondents was filed, was, upon the trial, a controverted question of fact. The court found that the lien was filed prior to the time of the transfer, and such finding has the support of evidence. These facts support the conclusion of the court, unless there is some further cause to overcome or modify the effect given to them. It appears that in July, 1891, the appellants filed a mechanic’s lien upon the premises; and the question is whether it is available to them in this action. They may have relied upon the transfer to them by Evans & Grant, This they alleged. They did not make the lien a matter of allegation or of claim for relief in their answer ; but it is alleged by their counsel that, as the fact was proved on the trial without objection, it should be treated as effectual as if it had been setup in their pleading. The statute provides that all persons who have filed notice of such lien “ shall by answer in such action set forth the same, and the courts in which the action is brought may settle and determine the equities of all the parties thereto,” etc. Laws 1885, c. 342, § 17. While the court found that the appellants filed a mechanic’s lien in July, 1891, he added that they do not claim herein under that lien,” and the appellants excepted. The answer of a defendant alleging a claim founded upon a lien under the statute sets forth a cause of action in his behalf, and upon it affirmative relief is sought. The appellants did not ask to amend on the trial, and, if they had, it is quite questionable whether it could have been allowed, in the discretion of the court, against the objection of any of the other parties, so as to set up their lien. It may be done at the trial to conform the pleading to the facts proved where the amendment does not change substantially the claim or defense. Code, § 723. The amendment now suggested would have been a substantial change of the pleading. It would' have constituted a different defense or cause of action in behalf of those defendants from that alleged in their answer. It cannot now be assumed that the other parties would not have objected to it if application to amend the answer had been made there. If the court had disregarded the failure to allege the appellants’ lien in their answer, and given them the benefit of it by the decision upon the merits, a different question than is now here might have been presented. Barnes v. Perine, 12 N. Y. 18, 24; Field v. Mayor, etc., 6 N. Y. 179 ; Voorhees v. Burchard, 55 N. Y. 98. The amendment cannot be made upon this review. Nor can it be said that the trial court erred in not disregarding the omission of those defendants to allege their lien. Storrs v. Flint, 46 N. Y. Supr. Ct. 498, 519; Southwick v. First Nat. Bank, 84 N. Y. 420. It may be observed that, although it does not appear by the record that objection was taken to the introduction of the appellants’ notice of lien in evidence, their offer to prove, in that connection, the indebtedness represented in it, appears to have been objected to at the trial. The trial court may have deemed this matter of defense and claim as waived by the failure of those defendants to plead it. Center v. Weed, 63 Hun, 560; 44 St. Rep. 463. These views render it unnecessary to consider any other question.

The judgment should be affirmed.

All concur.  