
    Louis Tager and Jacob Katz, Doing Business under the Firm Name and Style of Tager & Katz, Respondents, v. Albert Halpern, Appellant.
    Second Department,
    October 12, 1909.
    Trial— recalling witness.
    Where in an action to foreclose a mechanic’s lien the question as to whether extra work done by the plaintiff was to be offset by the withdrawal of work required by the contract is in issue, and the evidence is vague and unsatisfactory, it is error to refuse to permit the defendant, who had not closed his case, to recall his architect to testify on that issue.
    Appeal by the defendant, Albert Halpern, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 1st day of March, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      L. B. Boudin, for the appellant.
    
      Julius Blumofe, for the respondents.
   Jenks, J.:

The defendant appeals from a judgment of foreclosure of a mechanic’s lien resting upon a written contract for work on the defendant’s buildings. The plaintiffs allege performance, and their claim is for a balance due on the contract price and for the sum agreed upon orally for extra work. The defendant makes general denial save as to the execution of the written contract, alleges nonperformance and interposes a counterclaim.

The written contract required the plaintiffs to make, complete and finish, all the brick-mason works” in and about nineteen brick buildings in accordance with certain plans and specifications. It is not necessary in the view I take of this case to consider the defense of non-performance. The defendant did not dispute that the plaintiffs did extra work, but he contends that the parties agreed that such work should be set off against the withdrawal of certain work from the written contract, in that the defendant would cause certain steps to be built of concrete or cement instead of brick, and by the general contractor. There is no question that the steps were so built. The plaintiffs denied that such agreement was ever made, and asserted that such work was not within his contract. The defendant was corroborated as to the said agreement by the testimony of the general contractor. It was important to ascertain whether the said work was within or without the written contract. The evidence is vague and unsatisfactory, and it certainly did not justify the conclusion that the work was outside of that contract. The plans were before the court, but unexplained they did not determine this question. When it appeared that the question ivas still in doubt, the defendant asked to recall the architect but permission was refused. Upon the evidence adduced I think that the court was not justified in disregarding this contention of the defendant. This then is not a case when the evidence ivas exhausted, but rather when testimony which naturally would shed much light on a vital point was not elicited. The record does not show that the defendant closed his case, but that the court stopped him, and said that it did not wish to hear any more, that it Avould give judgment in that the overshadoAving fact ” Avas that the defendant offered to pay the plaintiffs for his claim by giving a note. Of course that Avas an important bit of testimony, but the defendant denied that he did so, and .plaintiffs did not corroborate this testimony by calling any other Avitness, although one of the plaintiffs volunteered that his partner and some of the workmen were present Avhen the defendant made this offer. It seems to be virtually conceded that in any event only a personal judgment could be recorded.

I advise the reversal of the judgment and the granting of a new ' trial, costs to abide the final award of costs.

Gaynor, Burr, Rich and Miller, JJ., concurred.

Judgment reversed and neiv trial granted, costs to abide the final award of costs.  