Divine v. Duncan. Martin & Smith, for motion. Morrison, Lauterbach & Spingarn, opposed. LARREMORE, J.-The Code provides (§ 121) that no action shall abate by the death of a party, if the cause of action survive. In such case, the court, on motion at any time within one year thereafter, or af terward on a supplemental complaint, may allow the action to be continued by or against the representatives of the party deceased. By the section above referred to, a supplemental complaint, a complaint for revivor and supplement, and for mere revivor, are all placed upon the same footing. In this case the cause of action survived, and the proceedings had by the pres ent plaintiff for a revival as against the surviving defendants were authorized and legal. This the defendant Duncan concedes by accepting service of the supplemental complaint and demurring thereto. By the service and return of the amended supplemental complaint and the present application two questions are presented for adjudication. 1. The right to amend the supplemental complaint of course, in pursuance of section 172, and set up a new cause of action. 2. The right to join the representatives of a deceasd defendant with a surviving defendant in an action upon a joint liability. 1. The supplemental complaint is a pleading, and as such amendable once as of course (Goddard v. Benson, 15 Abb. Pr. 191); and the cases of Brown v. Leigh (49 N. Y. 78) and McQueen v. Babcock (3 Abb. Ct. App. Dec. 129) hold that a new cause of action can be set up as well in an amended pleading as in an original. To the same effect are Spencer v. Tooker (12 Abb. Pr. 353; Fielden v. Casselli, 16 Id. 289). In the more recent case of Robertson v. Bennett (Daily Register, February 1), in the superior court, it Divine v. Duncan. was decided by Judge SPEIR that an answer might be served as of course as an amendment to a demurrer. In face of these authorities, I must hold that the supplemental complaint was amendable. 2. Is Duncan, as the administrator of the deceased defendant Roelofson, properly joined as a party with the surviving defendant Gibson ? If this were an action at law on a joint liability, Duncan would not be a proper party, and the estate in his hands could only be reached by a suit in equity after all legal remedies against the surviving partner had been exhausted (Richter v. Poppenhausen, 42 N. Y. 373; Masten v. Blackwell, 8 Hun, 313). But this action is on the equity side of the court, and among the averments by way of supplement is that of the insolvency of Gibson, the surviving partner. This is not absolutely denied by the opposing affidavit, the denial being as to the insolvency of the firm of which he was a member. In Voorhis v. Child's executor (17 N. Y. 354), the doctrine is affirmed that in any action, either at law or in equity, against the representatives of a deceased partner, the insolvency of a surviving partner is an essential fact to recovery; but the court reserved the question whether such fact would justify a joint action against the survivors and the representatives of the deceased partner. In Van Riper v. Poppenhausen (43 N. Y. 68) such an action was sustained by reason of the established fact that the surviving partner was wholly insolvent, although the remedy at law against him had not been exhausted. The facts alleged, if proved, would sustain a new action against Duncan, and the liberal policy of the Code, in causing parties to be brought in (§ 122) in order to prevent circuity of action, leads to the conclusion that this application should be granted. The defendant may interpose the same defenses in Black v. Continental National Bank. this as in such other action, except the statute of limitations, and where the merits presumptively appear, and the plaintiff would otherwise be remediless, it is the duty of the court to exercise a sound discretion and save the statute. BLACK v. CONTINENTAL NATIONAL BANK. N. Y. Supreme Court, First Department; Circuit, March, 1877. CALENDAR PRACTICE. Where leave to amend is granted, with no provision as to date of issue, the issues made by the amended pleading control the place on the calendar, unless the court, in its discretion, orders that it be advanced.* Motion upon two days' previous notice on the part of the plaintiff, to place cause on the day calendar, returnable at the circuit. It appeared that after the cause had been once tried, a new issue had been raised by the service of an amended answer. The order granting leave to amend said nothing about the date of issue. The cause remained upon the calendar by its former number. W. W. Goodrich, for the motion,-Contended that the original issue governed the place of the cause on the calendar. * For the rules as to preferences in the calendar in the new Code of Civ. Pro. see §§ 278, 789, 795. Burroughs v. Fosteran. John W. Sterling, opposed,-Cited Bailey v. Spofford.* WESTBROOK, J.-As it was not made a part of terms of the amendment that the issue should date back, the right to advance is in the discretion of the court. Owing to recent employment of counsel, the trial should wait their convenience somewhat. The cause will be placed on the calendar for June term, and the court can then make such further order as to its trial as will be just. BURROUGHS v. FOSTERAN. City Court of Brooklyn; General Term, 1877. MECHANIC'S LIEN. -PERSONAL JUDGMENT. In an action to foreclose a mechanic's lien, the owners did not answer, but paid into court a sum they admitted to be due to the contractors, which plaintiffs withdrew. Held, that judgment should not be reversed because the referee failed to report whether * In the case of Bailey v. Spofford, Judge VAN BRUNT, holding the circuit of the previous month of February, had decided that, "the issues made by the amended pleadings are the only issues now in the case, and must control the place of the cause upon the calendar." The plaintiff has since [March 26, 1877,] been heard upon the same question at chambers before Mr. Justice LAWRENCE, who has given the following decision:-"The learned justice who denied the motion at circuit appears to have been entirely right in saying that the amended issues are the only issues before the court, and must control the place of the cause upon the calendar. There is therefore no reason for interfering with his direction in the order made granting the amendment. If the cause is entitled to a preference upon the circuit calendar, application for such preference must be made to the circuit judge. Motion denied; no costs." Burroughs v. Fosteran. there was any indebtedness from owners to contractors at the time when the lien was filed. To establish the joint liability of contractors in a proceeding to foreclose a mechanic's lien, it is not necessary to prove that they were partners, if there be evidence that the liability was incurred on their joint account.* In an action to foreclose a mechanic's lien a personal judgment can be recovered against the contractors, although plaintiffs fail to establish a lien, unless the statute distinctly otherwise provides.† The statute is to be so construed, if it may be, as to save the necessity of two actions. Under the Kings and Queens county act (L. 1862, p. 951, chapter *See Moss v. Jerome, 10 Bosw. 220; Basford v. Brown, 22 Me. 9; Tradesmen's Bank v. Astor, 11 Wend. 87; Chrisman v. Long, 1 Ind. 212. + In TOOKER v. RINALDO, Supreme Court, First Department, General Term, May, 1877, it was held that, an action brought to enforce a lien for materials furnished towards the construction of a building is, in its nature, a foreclosure proceeding (see chap. 379, Laws of 1875, § 10). The court may order a reference of the issues in such an action, under the provisions of the code as to compulsory references. Appeal from an order of reference. This action was brought to foreclose a certain mechanic's lien, filed by plaintiffs against four certain pieces or parcels of land, with the buildings thereon erected, and known as Nos. 1019, 1021, 1023 and 1025, Second avenue, New York city, and owned by the defendant, Rinaldo. The answer of the defendant, Rinaldo, among other things, alleged a denial of the performance of the work and labor, or the furnishing of the materials by the plaintiffs in the construction of the premises, as alleged in the complaint. The defendant, Rinaldo, the owner of the premises, moved at special term for a reference, on the ground that the trial would involve the examination of a long account. The motion was granted and the cause referred, and from this order the plaintiffs appealed. Albert Cardozo and Jacobs & Sink, for respondents. Weeks & Forster, for appellants. Held, as above. Opinion by BRADY, J. DAVIS, P. J., concurring. For other cases on the analogy between proceedings to foreclose such liens and personal actions, and the extent to which the rules applicable in actions govern, see cases at pp. 111-128 of this vol. |