Maicho Fortunato, Plaintiff, v. The Mayor, Aldermen and Commonalty of the City of New York and Others, Respondents, Impleaded with Helen A. Dawson, as Administratrix, etc., of John F. Dawson, Deceased, Appellant

Maicho Fortunato, Plaintiff, v. The Mayor, Aldermen and Commonalty of the City of New York and Others, Respondents, Impleaded with Helen A. Dawson, as Administratrix, etc., of John F. Dawson, Deceased, Appellant. Supplemental answer — the new matter pleaded must he in addition to or continua- • tion of the matter already pleaded. A person having a contract with the city of New York to perform certain work, including the construction of a retaining wall, sublet a portion thereof, and upon his failure to pay the sub-contractor for the work done and materials furnished, the latter filed a mechanic’s lien against the fund which the contractor was to receive from the city. Subsequently he brought an action to foreclose the lien, in which the city and the contractor and other alleged lienors interposed answers, the only-issue raised- by which was as to the existence and priority of the liens which the plaintiff and the defendants other than the city claimed to have. Meld, that the personal representative of the contractor would not be permitted to serve a supplemental answer alleging a cause of action against the city for work done independent of the contract in placing a coping on the retaining wall, as such an answer would change the city’s relation to the action from ■ -that of a stakeholder to that of the real defendant, and as the new matter sought to be set up had no relation to the matter involved in the litigation as. framed by the original pleadings. INew matter attempted to be pleaded by a supplemental answer must be in addition to or in continuation of the original matter alleged. Appeal by the defendant, Hqlen A. Dawson, as administratrix, etc., of John F. Dawson, deceased, from an order of the Supreme -Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of March, 1899, denying her motion for leave to serve an amended .answer. ; G. J. G. Hall, for the appellant. Theodore Connoly., for the respondent, mayor, etc. Robert Heyo, for the respondents Patten, executors, etc. [MAJORITY — 'McLaughlin, J.:] 'McLaughlin, J.: This is an appeal from an order denying a motion made by the -defendant Dawson, as administratrix, for leave to serve a supplemental answer. The motion was denied by the learned justice at Special Term on the ground, as appears from his opinion, that the proposed answer was not supplemental to or in continuation of the original answer served; and that he was correct in his conclusion .seems clear when the object of the action and the issues raised by the pleadings are considered. In 1886, the appellant’s intestate, John F. Dawson, entered into a contract with the city of New York to do certain work and furnish certain materials on a portion of Edgecomb avenue in that city, "which included the construction of a retaining wall. Dawson sublet a portion of his contract to the plaintiff, who, not having been paid "for the work done and materials furnished, filed a mechanic’s lien against the money which Dawson was about to receive from the city under his contract with it, and in 1890 commenced this action to foreclose the same. The city, Dawson and various alleged lienors were made parties defendant and as such interposed answers. Substantially the only issue raised by these pleadings was whether the plaintiff and the defendants other than the city had liens upon the fund to be due to Dawson, and if so the priority of their .respective liens. The fund was insufficient to satisfy and discharge -all, and the only interest which the city had in the litigation was to ■determine who was the proper party to pay, in order to satisfy and ■discharge its obligations under the Dawson contract. The action being to foreclose a lien, only two things, so far as the city was concerned, could be established, one the amount of the liability of the •city to Dawson under the contract with him, and the other the -amount of the liability of Dawson to the alleged lienors. The proposed supplemental answer is to afford an opportunity to Dawson’s representative to recover the sum of $o,840 for extra work done -and materials furnished independent of and outside the contract in putting a coping on the retaining wall referred to. It only requires the most casual consideration to see that, if the order had been granted, the cause of action, as far as the city is con- cerned, would have been entirely changed from one for the adjustment of liens on money due under a contract to one- for a specified :sum of money- alleged to be due independent of the contract. The .right of Dawson to recover this sum was not involved in the issue as originally formed, and this is the view taken by his attorney on a hearing heretofore had before a referee. He there objected to the admission of testimony on that subject on the ground' “ that there lias been no issue raised in this action as to the coping wall,” and “that the contract does not provide for the payment of the coping wall, and Mr. Dawson, if he is to he paid for that at all, is to be paid for extra work. *' * * His bill for the extra work has been hied with the ; Comptroller, and the matter is under advisement' * * As the issue was originally formed,_ the city occupied the position of a stakeholder; whereas, if the amendment were allowed, it would be a real defendant- in the action. The cause of action and defense would be entirely changed, and it is well settled that a supplemental answer cannot be allowed if it sets up a new cause of action or defense. The new matter attempted to be pleaded in this manner must be an addition to or continuation of the original matter alleged. (Lindenheim v. N. Y. El. R. R. Co., 28 App. Div. 170.) The new matter here attempted to be set up has no relation to and is not connected with the subject-matter involved in the' litigation as framed by the original ^pleadings, and for that reason the motion was properly denied The order appealed from must be affirmed, with ten dollars costs and disbursements. Patterson, O’Brien and Ingraham, J"J., concurred. Order affirmed, with ten dollars costs and disbursements.