Poerschke v. Horowitz

Laughlin, J. : This is an action to foreclose a mechanic’s lien. It is alleged in the complaint that on the 25th day of June, 1901,. the appellants Philip and Meyer Horowitz entered into a contract in writing with the respondent by which the latter agreed to furnish, the material and perform the labor required in and about the “ mason work, marble tiling, plastering, concrete, etc., .furnish all materials and other work ” mentioned in the plans and specifications annexed to-. the contract for the construction of. a new building at Hos. 54 and 56 Eldridge street in the borough of Manhattan, Hew York, the premises being owned by Philip Horowitz. The consideration to be paid for the complete performance of the contract was $16,400. T.wo modifications of the contract by agreement of the parties are expressly pleaded in the complaint. The one by which extra work in connection with the dumbwaiter at an agreed price of fifty dollars was done, and the other by which the tile work was to be omitted and performed by the owner on the understanding that there should be a reasonable deduction therefor from the contract price. . The only questions arising on the appeal that require considera* tion are those relating to certain amendments of the complaint setting forth other modifications of the contract and specifications by agreement of the parties under which there, was a substitution of. material in four respects. The court refused to allow the plaintiff [445] to prove, under the complaint as framed, that the substitutions were made with the consent and by the direction of the owner and his associate contractor. In effect the objections to the amendments challenge the power of the court on the trial of the issues to allow the same, but no claim was made that the defendants were not prepared to meet the issues tendered by the amendments, except that counsel stated, “We did not come here to try any such new issues,” and “ I plead surprise.” Ho request was made to have the complaint formally amended and served or for leave to plead thereto ; nor was any application made to the court for an adjournment on the ground of surprise. The contract was neither set out in the complaint nor annexed thereto. After alleging the making of the contract and the two modifications referred to, the complaint alleges that the plaintiff “ furnished all the materials and performed all the labor under his said contract as modified, and in all things duly performed all conditions of said contract, as modified, by him to be performed.” The contract is annexed to and made a part of the answer. It provides, among other things, that “ should the owner at any time during the progress of the said building, reguest mvy alteration, deviation, additions or omissions from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.” The specifications annexed to the contract require, among other things: (1) That all brick should be new Haverstraw brick; (2) that certain floors should be constructed with “ Rapp’s Patent System of Eire Proofing; ” (3) that the front, rear and side walls should be lathed with spruce lathing; and (4) that the walls of the kitchens and' bathrooms should be “ treated with Ho. 1 a superfine Keene’s cement.” The amendments to the complaint allowed upon the trial charged that the contract was further modified by consent of the parties: (1) By permitting the respondent to use a certain number of second-hand brick; (2) by requiring him to use other fireproofing instead of Rapp’s system; (3) by requiring that the lathing on the outside walls be omitted and the plaster applied directly to the wall; and (4) by requiring other cement to be substituted for Keene’s. The answer of the contracting parties put in [446] issue, among other things, the performance of the contract by the plaintiff, and set up a counterclaim for, among other things: (1) The use of the old bricks; (2) the use of fireproofing other than Rapp’s patent system ; (3) the failure to lath the outer walls; and (4) the failure to use Keene’s cement in the kitchens. ' It thus appears that the parties to the contract who are appellants set up specifically as their defense the substitution of materials concerning which the plaintiff was allowed to amend upon the trial, ' The plaintiff gave evidence tending to show that all of these changes were not only made with the consent of the owner and his associate contractor on the one.side but by their direction and for their benefit. ' This court has recently had occasion to consider and determine the authority of a referee or court upon the trial to permit amendments to the pleadings in a case quite similar to this. (Perry v. Levenson, 82 App. Div. 94.) We there held that “the only limitation upon this authority seems to be that the amendment shall not change substantially the cause of action or embrace a new one ” and cited cases sustaining that rule, which it is unnecessary to consider anew. That, was an action to foreclose a mechanic’s lien and the principal questions presented related to the power of a referee to allow amendments upon the trial showing modifications and omissions from the plans and specifications. There, as here, the contract contained a clause authorizing the owner to require changes, alterations and omissions,-and we held, it being the duty of the contractor to make such deviations from the plans and specifications as should be directed or required .by the owner, that proof of modifications or omissions made by the direction of the owner was but proof of the performance of the contract; • and that at, most the amendments of the complaint, setting forth such modifications or omissions, merely made the complaint more definite and certain concerning the allegations of performance of the contract. The action, is still upon the contract as alleged. If the owners had set up the failure of the plaintiff to make changes and alterations in ■ the work or substitution of materials as directed by them, proof of this under such a .contract would constitute a defense,: because it was the express contract duty o"f the plaintiff to make such changes and alterations. By these amendments and the evidence received thereunder no new cause of action is alleged or proved nor is the cause [447] of action originally pleaded substantially changed. It is manifest, therefore, that these amendments, if necessary at all in the absence of a motion to-make the complaint more definite and certain with respect to the allegations of performance of the contract, were such as the court was authorized to make upon the trial. The record discloses nothing to indicate that this was not a proper case for the allowance of the amendments. The effect of the amendments was to relieve the owner and his associate contractor from proving the changes and modifications set up in their answer. The plaintiff in effect conceded their claims in that regard, but proposed to show that the changes were made by their direction and consent, and did so by satisfactory evidence. This evidence consisted of interviews between the plaintiff and the owner, who was in court, and was examined fully and was manifestly as prepared then as he ever could be to meet it. Counsel for the appellants points out a clerical error in the decision by which the judgment has been authorized for $200 more than was intended. The court found that the plaintiff had done extra work of the value of $50 for which he had not been paid, that the final installment of $4,000 had not been paid on the contract, and that there should be deducted from the contract price the sum of $1,377, the fair and reasonable value of the work omitted and of deductions on account of changes and alterations. It is recited in the decision “ that there is now due plaintiff on account of the said contract the sum of Four thousand and Fifty dollars (the last payment under said contract together with the Fifty dollars for extra work) less the sum of One thousand three hundred and seventy-seven dollars, * * * making a balance of Two thousand eight hundred and seventy-three dollars, with interest thereon from the 6th day of April, 1903.” Judgment was directed for this amount with costs, including an extra allowance, and the judgment was entered accordingly. The balance was only $2,673, not $2,873 as stated. This, like the date from which interest is allowed, is manifestly a clerical error which could and should have been corrected by motion. The failure of the appellants to pursue that inexpensive remedy justifies us in not awarding them costs, there being no other error found; but it does not warrant a refusal to correct the judgment. The judgment should, therefore, be modified -by deducting $200 [448] and interest thereon from the 6th day of April, 1902, to the date of the entry of judgment, and as so modified affirmed, without costs. O’Brien, J., concurred; Patterson, J., concurred in result; Ingraham and McLaughlin, JJ., dissented.