that in an equity case the facts may be more numerous, more complicated, more involved; and the pleader may state all the facts, in a legal and concise form, which constitute the cause of action and entitle him to relief. The rule touching the statement of facts constituting the cause of action is the same in all cases, and the rules by which the sufficiency of the pleadings are to be determined are prescribed by the Code. People v. Ryder, supra. One of the material requirements of a complaint to foreclose a mechanic's lien is an allegation of the contract under which the labor or material were furnished, or facts which amount to a contract, The plaintiff, in his complaint, undertook to comply with this requirement by specifically alleging-First, a contract between the plaintiff, as subcontractor, and Meres, the contractor; and, next, a contract between the latter and Chapin, the owner; and the lien is sought to be enforced on the theory that the owner owed the contractor an amount exceeding that claimed by the subcontractor. These allegations were denied, and the issues so raised came on for trial. Instead of proving the facts as alleged, the contract between Meres, the contractor, and Chapin, the owner, was not offered in evidence. Indeed, the plaintiff undertook to ignore it, by attempting to prove a contract between the plaintiff and Chapin, the owner, by which the latter was to pay the plaintiff for his work and material. The trial judge refused to receive the evidence offered; there being nothing in the complaint warranting its reception. This ruling was proper; and, the plaintiff having failed to sustain the allegations of his pleading in manner and form as alleged, the dismissal of his complaint was not error. A party cannot be called into court to defend upon a cause of action particularly specified, and be required upon the trial to answer another, entirely different, for which he is unprepared. Pleadings are to be so drawn as to evolve some question, either of fact or law, disputed between the parties, and mutually proposed and accepted by them as the subject for decision; and the question so produced is called the "issue." Tyler, Steph. Pl. 147. The pleadings herein clearly defined the issue the court below was called upon to determine, yet no proof was offered in its support.

The plaintiff moved to amend his complaint by alleging an agreement on the part of the owner to pay for the work done. The amendment proposed was not of form, but of substance, as it changed the entire nature of the action and proofs. Its purpose was to drop Meres, the contractor, as the debtor, and to substitute in his place Chapin, the owner, as the one primarily liable to him, as an original promisor. Such an amendment might have been permitted on terms or conditions that would not have operated to the prejudice of the defendants, or taken them by surprise. But the trial judge was under no obligation to allow an amendment, even in an equity case. An application for leave to amend a pleading is addressed purely to the discretion of the trial judge, and his denial of it is not reviewable on appeal. Rosenwald v. Hammerstein, 12 Daly, 377. It is needless to discuss what we might have done at trial term under similar circumstances. The question we are to determine is whether the judge below erred,—in other words, whether he acted contrary to his duty,-and the record does not warrant us in deciding that he acted in violation of law. Pleadings are at times amended on appeal, but only to uphold a judgment; never to reverse one.

This leads us to the construction of the statute conferring the right of lien in favor of mechanics and others doing work or furnishing materials towards the erection or alteration of buildings in this city. The term "with the consent of the owner," contained in section 1, c. 342, Act 1885, must be construed with reference to its obvious intent and meaning. It was not intended to make the owner pay twice,-first to the contractor, and next to the employes of the latter. If, however, a stranger employs a contractor "with the consent of the owner," expressed or implied, the property of the owner will be liable for the claim of the person employed; for the reason that the land, having re

ceived the benefit of the labor or material, with the expressed or implied assent of the owner, should be charged to the extent of the benefit conferred thereon. Thus, in Nellis v. Bellinger, 6 Hun, 560, a son employed a mechanic to erect a dwelling-house upon land which belonged to his father, for his own use and benefit. It was shown that the father consented to the erection of the house, and, while he did not contract for the work, or direct it, or in any way become responsible for it, personally, it was held that the mechanic had a lien upon the land for services rendered in the construction of the house. In Husted v. Mathes, 77 N. Y. 388, the title to the land. was in Mrs. Storms, and the improvements thereon were made by her husband, she simply knowing of them, and consenting thereto; and the right of lien was enforced. These decisions proceed upon the theory that "the legislature clearly intended to enforce the equitable principle that one who knowingly takes the benefit of the property or labor of another, in the form of improvements made upon his land, ought to have the land subjected to a lien for the value thereof." Not to charge the land, in such a case, would enable the owner of the fee to appropriate the labor and materials of others to his own benefit, without compensation. This would be manifestly unjust and inequitable. But where an owner employs a contractor, and pays him all he contracted to pay, not in advance, but as the work progressed, not collusively, but in good faith, he cannot be again compelled to pay, simply because the contractor subsequently fails to pay those he employed. The contractor has the right to employ assistants "without the consent of the owner." The nature of the work would imply that he must. These employes are selected by, and are under the exclusive control of, the contractor, who makes his own contracts with them, and superintends their performance. Mechanics are not obliged to accept employment under him, neither are material-men bound to credit him; and, if they do, they must look to his personal credit, or see to it that their notices of lien are filed in time to stop the payments coming from the owner to the contractor according to the terms of the contract, or their effort to acquire a lien on the property may prove abortive. A person who leases property and employs mechanics to do work upon it, to suit his pleasure or convenience, cannot charge the estate of the owner for the work. Knapp v. Brown, 45 N. Y. 207; Muldoon v. Pitt, 54 N. Y. 269; Jones v. Manning, 6 N. Y. Supp. 338. In other words, in order to affect the estate of the owner, he must in some manner consent, either expressly or impliedly, to the charge; for neither he nor his property can be charged contrary to his agreement, and against his will. In Otis v. Dodd, 90 N. Y. 336, owners of certain lands leased the same for a term of years; the lessees covenanting to erect certain buildings and structures thereon, which, at the expiration of the lease, should become the property of the owners. The plaintiff, under a contract with the lessee, erected the buildings and structures specified, and filed the notice required to effect a lien; and it was held that he thereby acquired a valid lien, as against the owners, for the balance due. In that case the erections became part of the freehold as soon as they were made. They were to belong to the owners of the fee. The owners paid nothing for the erections, which, by the terms of the lease, were made by their express consent. They superintended the erections, and gave directions concerning them. The property thus benefited and improved was, under the circumstances, equitably charged with the lien. This seems just; and the principle decided in that case cannot be extended to an owner who contracts for the erection of a building, and in good faith pays for it according to the terms of the contract of employment. Whenever an owner contracts with another to build a house on his land, he consents to the erection; but such consent does not necessarily obligate him to pay subcontractors, not in privity with him, the amount of their demands. The owner's liability proceeds from his consent, as expressed in and evidenced by his contracts. He is to pay according to their terms, not otherwise. True, the pay

ments falling due to the contractor may be impounded by the filing of a lien by a mechanic or material-man, and may, by operation of provisions of the statute, be applied to discharging such liens; but no personal responsibility is placed upon the owner, further than that created by his contract. He may by subsequent acts create personal obligations to subcontractors, but not in the absence of an agreement with them, expressed or implied, whereby the owner makes the charge personal to himself. The case of Richardson v. Reid, 3 N. Y. Supp. 224, is of this character. There the contractor negotiated with the plaintiff for a furnace and range, when the owner stopped the negotiation, saying there was money in his hands belonging to the contractor; that he desired a larger and more expensive furnace put in his house; and that if the plaintiff would put the furnace in, he (the owner) would pay the bill therefor. The owner in that case became an original promisor, and was properly held personally liable for the price of the furnace; and a lien filed against his property was held to be valid. The complaint in the case cited, although more comprehensive than the one used here, was inartistically drawn; but the court said. It "seeins to be sufficient to sustain the judgment." If the evidence offered had been objected to and ruled out, as not being in accordance with the pleading, or the objection had been made that the complaint itself was insufficient to charge the owner personally, and the objection had been sustained, and the complaint, in consequence, dismissed, the court might have held, as we do here, that the ruling and decision were not error. The questions presented here were not discussed there, and could hardly have been presented in that case, in view of the result at which the trial court arrived. The complaint in the present case was drawn in accordance with our understanding of the statute. It presented a case in which a lien would attach against the property of the owner to the extent of the amount due from the latter to Meres, the contractor. The difficulty is that these facts were not proved; and, for the failure to establish them, the complaint was properly dismissed. The trial judge found that the owner had no contract with Meres; but this finding was not made upon proof, but upon the absence of it. The counsel for Chapin claims that the contract was not made with Meres, but with another person, not a party to the action; but this is of no consequence, because, as the plaintiff failed to prove his cause of action within its entire scope and meaning, the owner was not called upon to make his defense; and we cannot anticipate what he might have pleaded if the plaintiff had changed the allegations of his pleading, or what he would have proved if he had been put upon his defense.

The dismissal was upon technical grounds, not on the merits, and does not bar the plaintiff from maintaining a new action against his employer, whoever he may be. Code, § 1209. The declaration in the judgment that the dismissal was "upon the merits" was either erroneously or inadvertently inserted therein, and must be stricken out. With this modification, the judgment must be aflirmed, but without costs.

FIRST NAT. BANK v. Cox et al.

(Superior Court of New York City, General Term. April 15, 1889.)

NEGOTIABLE INSTRUMENTS-BONA FIDE HOLDER-EVIDEnce.

In an action by a bank on a note, it was in evidence that the manager of the business of one of the indorsers was in possession of the note shortly after its maturity, but the cashier of the bank testified that it had been sent for collection to another person, who delivered it to the bank's attorney. The attorney testified that the indorser was present when the note was delivered to him for collection, and that, no instructions being given as to its ownership, suit was brought in the name of the indorser, but, upon the attorney's learning that the note belonged to the bank, he so informed defendant's attorney and no answer was served; and subsequently v. 7 N.Y.s.no.15-49

this action was brought. Held, that there was no evidence that the note was ever in the hands of the indorser as owner after its maturity, or that the rights of the bank were other than those of a purchaser before maturity.

Appeal from jury term.

Action by the First National Bank of Gloucester against John Cox and others. Defendants appeal from a judgment on a verdict directed for the plaintiff.

Argued before SEDGWICK, C. J., and TRUAX and DUGRO, JJ.

Jesse Johnston, for appellants. Harriman & Fessenden, for respondent.

SEDGWICK, C. J. The action was on a promissory note against the defendants, as makers. On the trial the defendants did not contest that at first the plaintiff had paid value for the note, or that it was in the plaintiff's hands when it fell due. The answer had averred "that if the plaintiff is the owner and holder of said note the same was purchased after it became due and payable." If this referred to the purchase by the plaintiff at the time it first went into the plaintiff's ownership, there was no evidence to sustain this answer. On the trial the defendants assumed that the answer referred to a second purchase or delivery of the note to the plaintiff from the payee, one Stinson, who, it was claimed, had in some way paid or satisfied the bank's claim against him as indorser, and afterwards, after maturity, retransferred the note to the bank. If these facts had existed, the defendants claimed that the bank acquired only the right of Stinson, the indorser, against the makers, which would permit the defendants to make an offset against the indorser, and in the answer an offset was pleaded, which, if valid, would extinguish any claim upon the note. The answer also alleged that "Stinson, the payee in said note mentioned, is now the lawful owner and holder of said note." The defendants, to maintain these defenses, gave testimony for the purpose of showing that after maturity the payee, Stinson, was in possession of the note; they arguing that this possession made a presumption, that it had been delivered to him, by the bank, in a transaction that made him the owner of the note. They did not in reality give testimony that Stinson was in actual possession. The witness who spoke on this point said that one Eaton was in actual possession. As to Eaton's possession being the possession of Stinson, nothing more was shown than that at the time Eaton was the general manager of Stinson's business. This did not tend to show that the note was held in the course of that employment of agency, when the other undoubted facts of the case are considered. The defendants called a witness, one of the attorneys for the plaintiff in this action. He testified that the note in action was given to him by Mr. Booth. Both Booth and Stinson were his clients. Stinson had placed in his hands the papers that concerned the claim that Stinson made in respect of the contract, which is the subject-matter of the offset in the present answer. Booth had such relations to Stinson that he was present at consultations in respect of the contract. In the course of these, Booth placed in the hands of the witness the note, with directions to bring suit upon it, with no instructions as to the ownership of the note. An action was begun in the name of Stinson. Before answer, the witness learned that the bank was the owner, and he so told the defendant's attorney, and no answer was served. Thereupon this action was brought.

The cashier of the bank was called as a witness for plaintiff. On his crossexamination he testified that the bank sent the note from its place of business, in Massachusetts, to Booth, in New York, with instructions to collect the note, and, if necessary, to have suit brought upon it. His testimony on the point of Booth's having custody of the note was so corroborated by the evidence of plaintiff's attorney, called as a witness by defendants, that his credibility was not a question for the jury. One of the defendants testified that Eaton did have possession of the note at a time not definitely fixed, and that Eaton

demanded payment of the note. The other testimony satisfactorily showed that, if Eaton had the note before Booth gave it to the attorney, Eaton must have been acting for Booth or for the bank; or, if he had it after the attorney held it from Booth, he must still have held it for the bank in reality, even if we suppose that for a time Stinson was thought, by a mistake, to be the holder. Such a mistake would not give Stinson or Eaton a right to act in the attempt to collect for any but the bank. I am of opinion that there was no evidence that the note was ever in Stinson's possession after maturity, as owner, or that plaintiff's rights were other than those of a purchaser before maturity. The judgment should be affirmed, with costs. All concur.

STEVENS v. REYNOLDS.

(Supreme Court, General Term, First Department. November 7, 1889.) MECHANICS' LIENS-ASSIGNMENT OF DEBT.

The New York mechanics' lien law (Act 1885, c. 342) provides that if the owner or person in interest shall, for the purpose of avoiding the provisions of the act, or in advance of the terms of any contract, pay by collusion any money, etc., he shall be liable for the amount which would have been unpaid to the contractor, assignee, etc., had no such payment been made. A material-man filed a lien for lumber furnished the contractor. Afterwards the contractor gave to another materialman, who had also furnished lumber, an order on the owner for a sum in excess of that due him for the lumber. The order read: "It being for lumber materials used in construction of same; the amount to be paid of the last payment of $1,900. " Held, that the material-man presenting the order could only recover thereon the amount due for lumber actually furnished by him for the building.

Case submitted on agreed statement.

This was an action by Chancey Stevens against Bridget M. Reynolds, to enforce a mechanic's lien. Upon the trial of the issues the parties affected by the appeal agreed upon the following state of facts:

"STATEMENT OF FACTS.

"First. The defendant Bridget M. Reynolds was, September 1, 1886, and still is, the owner in fee of the premises described in the complaint known as No. 115 Waverly Place,' in the city of New York. Second. The defendant Hugh M. Reynolds was and is the husband of said Bridget M. Reynolds, and was her duly-authorized agent to make contracts affecting said property. Third. The defendant Anderson, on or about September 21, 1886, made a contract with the defendant Hugh M. Reynolds, as agent of said Bridget M. Reynolds, to do certain carpenter work on the building erected on said premises, and to furnish certain materials therefor. The contract called for the completion of the work on or before October 20th, 1886, and the payments to be as follows:

When all the trimmings should be done, except the basement, When all the doors and sash should be hung, vestibule set up. and hardware on,

Thirty-five days after the completion of all the work,

Making a total of

$1,000

1,000

1,900

$3,900

Fourth. That said Anderson entered on the performance of said contract, and received payments on account amounting to $1,950; that he failed to complete the work by October 20th, 1886, and continued, with Reynold's consent, to work on the building until about the 22d day of December, 1886, at or about which time the work was completed; that certain portions of the work called for by the contract were omitted by Anderson and completed by Reynolds; that the trial court has allowed $404.52 therefor; that certain other portions of the work were either waived by the owner or offset by other work furnished; that the amount adjudged to be due said Anderson on said contract, after making said deductions, is $1,545.48. Fifth. That the plaintiff,