
    Fortunato v. Mayor, etc., of the City of New York and the Twelfth Ward Bank of the City of New York et al., Impleaded.
    (New York Common Pleas
    General Term,
    February, 1893.)
    In an action to foreclose a municipal mechanics' lien and to determine the amount and precedence of several claims against the city of New York, under a contract with one D., the only question in litigation was to whom, in what order and amounts the money due D. from the city should be paid. On the trial, the referee allowed an amendment to D.’s answer which authorized a recovery by him against the city for extra work. This was at a hearing which the legal representative of the city did not attend, it being, as he and others supposed, though erroneously, for the purpose of summing up a matter which, on the then state of the pleadings, was of no concern to his client. From the judgment entered thereon by D. against the city the latter appealed, and on its motion an order was entered opening the judgment, permitting the city to oppos? the motion to annul and, if need he, to resist D.’s claim for extra work. Held, that the order was a discretionary one and properly granted.
    Appeal from order at Special Term, opening judgment on referee’s report. The opinion states the case.
    
      Charles W. Dayton, for Twelfth Ward Bank, defendant (appellant).
    
      
      C. J. Hall, for John F. Dawson, defendant (appellant).
    
      William H. Clark {Theodore Connelly and John L. O'Brien, of counsel), for the mayor, etc., defendants (respondents).
   Pryor, J.

The action is to foreclose a municipal mechanics’ lien, and to determine the amount and precedence of several claims against the city under a contract with one Dawson. As the case stood upon the pleadings before the amendment complained of, the city was a mere stakeholder; and the only question in litigation was, to whom, in what order and hi what amounts the money due to Dawson from the city was to be paid. No claim whatever was made against the city for extra work. So the case was tried; but on its conclusion, the referee allowed an amendment of Dawson’s answer which authorized a recovery by him against the city for extra work in the sum of $5,840. The evidence touching the extra work was not irrelevant to the issues as they then stood ; and its admission did not necessarily admonish counsel for the city that a recovery for it was contemplated in the action. Indeed, it appears that the claim for the extra work did not accrue till after the commencement of the action. The amendment of Dawson’s answer authorizing the recovery of the $5,840, was made at a meeting which the legal representative of the city did not attend, and which he and others supposed, though erroneously, to be held only for the purpose of summing up, a matter which, on the then state of the pleadings, was of no concern to his client. On June 9, 1892, judgment in favor of Dawson against the city, on account of the extra work, was entered for the above-stated amount. From the judgment the city appealed, 16th of September, 1892, and on October 1, 1892, made a motion for the order under review. The order, in effect, opens the judgment, permits the city to oppose the motion to amend, and, if need be, to resist Dawson’s claim for the extra work.

The order is not for a retrial of the case or review by the referee of his own determination; but only opens a default for the litigation of an issue that had gone without contestation. Neither was the effect of the order merely to allow an. exception to the ruling permitting the amendment. Nor yet was the referfunctus officio in the sense that the case might not be sent back to him for the purpose of opposing a motion that had prevailed hy default, and, if necessary, to defend a claim not within the issues upon which the trial proceeded. Had the referee held this claim to be in issue on the original pleadings and so have determined it, then, indeed, would he have been functus officio, and the order a direction to revise his decision and retry the case.

Such being the nature of the order under review, the authorities so industriously collected by the learned counsel for the appellants are inapplicable to the point in judgment. The order being, in effect, the vacatur of a default, taken against the respondent through its “mistake, inadvertance, surprise or excusable neglect,” was, by the express terms of the Code, within the competence of the court and dependent on its .discretion. § 724. Nay, for that matter, independently of the statute and irrespective of its restrictions, the court had inherent power to grant the relief afforded by the order. Vanderbilt v. Schreyer, 81 N. Y. 646; Dinsmore v. Adams, 48 How. 274; 66 N. Y. 618 ; Ladd v. Stevenson, 112 id. 332; Hatch v. Central Nat. Bank, 78 id. 487; Matter of Buffalo, Id. 362; Trustees, etc., v. Merriam, 59 How. 226.

The order, then, being within the jurisdiction of the court, was discretionary, and we are to say whether the discretion of the court in passing the order was abused or improvidently exercised. We think not.

It is extremely doubtful whether in any aspect, the claim for extra work can be made a ground of recovery against the city. Consolidation Act, § 1824 et seq.

The order of the referee allowed an amendment to conform the pleading to the proof; but this can never be done on the trial when, as here, the amendment changes substantially the claim or defense. Code, § 723; Dougherty v. Vallonton, 6 J. &. S. 455, 457; Quimby v. Clafln, 13 Wkly. Dig. 203; Trustees v. Merriam, 59 How. 226; Woolsey v. Trustees, 2 Keyes, 605 ; Price v. Brown, 98 N. Y. 388; Bockes v. Lansing, 74 id. 437.

Since it appears that all the money, except the $5,840, has been distributed among the several claimants and the only question to be litigated under the order on appeal is the validity of this claim for extra work, which concerns only Dawson and his assignees, we do not preceive any embarrassment or prejudice to other parties which should have prevented an exercise of judicial discretion in favor of the respondent.

For, certainly a municipal corporation is no less entitled than a natural person to relief from the consequences of the improvidence of its counsel, if, indeed, regard for the public interests do not give it a claim to even greater indulgence. Greer v. Mayor, etc., 1 Abb. (N. S.) 210, 211; Seaver v. Mayor, etc., 7 Hun, 331; Brooks v. Mayor, etc., 12 Abb. N. C. 350; Lunney v. Mayor, etc., 14 Wkly. Dig. 140.

Observing, therefore, no abuse of discretion in the allowance of the order by the learned judge at Special Term we decline to reverse it. Vanderbilt v. Schreyer, 81 N. Y. 646 ; Bryon v. Durrie, 6 Abb. N. C. 139; Jones v. Hoyt, 10 id. 324; Morss v. Hasbrouck, 13 Wkly. Dig. 393; Morrison v. Agate, 20 Hun, 23; Barton v. Barton, 24 Wkly. Dig. 219 ; Avery v. New York Central, etc., R. Co., 9 N. Y. Supp. 404. Order affirmed with costs.

Bookstaveb and.BisoHOFF, JJ., concur.

Order affirmed.  