
    DANIEL v. BONSAL.
    (Supreme Court, Appellate Division, Second Department.
    December 30, 1910.)
    Appeal from . Special Term, ( Westchester County. Action- by William J. Daniel against Henrietta M. Bonsai. Judg-i ment for plaintiff, and defendant appeals. Af-j firmed conditionally.
    Frederick R. Graves (Clarence Lexow, on the brief), for appel- , lant. Frederick W. Clark, for respondent-. /
   PER CiURIAM.

Judgment reversed, and; j new trial granted, costs to abide the event, unless within 30 days plaintiff procures the Ga-Nun lien to be satisfied, the pending action to foreclose the same to be discontinued, and defendant released from any claim by Ga Nun, / in which case the judgment is affirmed, without '. costs. 1

THOMAS, J.

(dissenting). When the plain- I tiff sued upon a quantum meruit, be took his; I chances upon that form of pleading. Now, it I appears that he did not fulfill his contract, and 1 that he did not have the certificate, of the ar- f chitect, as the contract required. The referee j is obliged to help him out by making some par- / tial deduction for his delinquencies, and there- 1 upon gives him judgment for his damages, with costs. Unless all rules of pleading may be dis- ) regarded, and all the decisions of this and oth- I er courts neglected, the plaintiff has not plead- f ed properly, and yet he is just as successful ■ and receives the same legal consideration as if he had been quite obedient to authority. The-, judgment should be reversed, and, if then the plaintiff wishes to move to amend his complaint ' before another trial, he will probably be per- ' mitted to do so upon payment of costs to the J present time-; but, as it is, the whole burden ■ and costs of the litigation are thrown upon the ¡ litigant who is right, and all the benefits and 1 advantages accrue to the one who is- in the wrong.  