Joseph McGaw, Respondent, v. Marie Alice Godfrey, Appellant

Joseph McGaw, Respondent, v. Marie Alice Godfrey, Appellant. (Argued February 17, 1874; decided February 24, 1874.) The issues to be tried in an action are not matters of form but are .of the substance of the litigation. The provision, therefore, of the mechanics’ lien law for the city of New York (§ 5, chap. 500, Laws of 1863), making matters of form amendable at all times, does not require the court to amend, as-a matter of course, the pleadings upon the trial of an action to foreclose a lien under said act, but it is within its discretion, and it is not an abuse thereof to refuse an amendment which introduces an entirely new cause of action or defence. Under said act, when a lien is shown to exist at the time of the commencement of the proceedings for foreclosure, the court does not lose its jurisdiction because of the expiration of the lien before judgment, but it may proceed upon the merits and give a personal judgment against defendant. This was an action to foreclose a mechanic’s lien upon property in the city of New York. Defendant took a deed of the premises December 10, 1870. Previous to that time, she held the premises under a contract for the purchase thereof. It was claimed by her counsel that the premises were not subject to a lien for work and materials supplied to her prior to the date of the deed. Held, that, within the principle of the case of RolVm v. Cross (45 H. Y., 766), a lien was acquired for work and materials furnished after the execution of the contract of sale. Upon the trial defendant’s counsel asked to amend her answer by setting up new defences, which motion was denied. Held, as above. The lien expired before the coming in of the referee’s report. This fact was found by him and he directed judgment for the amount found due against defendant personally. Defendant’s counsel claimed here that such a judgment was unauthorized. Held, as above. Other questions were disposed of upon the ground that there were no exceptions in the case which presented them. A. J. Requier for the appellant. A. J. Perry for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance. All concur. Judgment affirmed.