William M. Gambling et al. v. David L. Haight et al., Owners, Appellants, and Walter Jones, Respondent

William M. Gambling et al. v. David L. Haight et al., Owners, Appellants, and Walter Jones, Respondent. (Argued June 2, 1874; decided June 9, 1874.) These were proceedings by plaintiffs, as. sub-contractors, tc foreclose a mechanic’s lien upon premises in the city of New York; defendant Jones, the contractor, filed a lien, and in his answer set up the same. The answer, after setting out the contract, alleged that it had been so far departed1 from by direction of the owners, that it was impossible to-determine therefrom the amount of compensation he was-entitled to, and asked to have it determined upon a quantum meruit. The cause was referred, and, upon the trial, while defendant Jones was on the stand as a witness, the plans and specifications referred to, and made part of the contract, were produced by defendant Haight, when, as alleged, it was ascertained that they had been materially altered without the knowledge or consent of Jones. Application was made to the'referee for leave to amend; this was denied; a motion was then made to the court for leave to file and serve a supplemental answer, setting up the alterations. This was-granted, and this appeal is from the order of the G-eneral Term affirming such order. Held, that under the mechanics’ lien law for 1863 (§ 5 chap. 500, Laws of 1863), the power to amend pleadings is the same as under the Code. That the amended or supplemental answer was within the discretion of the court below to allow, under section 173, conferring power upon the court to allow amendments, or under section 177, conferring power to allow a supplemental answer; that with the exercise of that discretion this court could not interfere, and that therefore the order was not reviewable here. J. Albert Davenport for the appellants. Alexander Thain for the respondent. [MAJORITY — Grover, J.,] Grover, J., reads tor dismissal of appeal. All concur. Appeal dismissed.