Thorburn v. Durra ( 1896 )

McAdam, J.

The action "as originally commenced was to foreclose a mechanic’s lien claimed by Donald Thorburn, who assigned his lien and all moneys to be, collected .from it to the plaintiff. Th§ lien was upon property on Third avenue, between Forty-eighth and Forty-ninth streets, this city.

. In the verified notice the defendant Durra is described as owner, and William Lawson as’ the- person by whom the lienor was enir ployed. In other words, Lawson was the contractor, and the lienor subcontractor. ■ The pleadings-were drawn and the-trial proceeded upon the theory that the parties held these relations to the property and to each other; but at the close of the case the'pláintiff, by leave of the court; amended her .complaint, placing the right of recovery .on the specific ground that Durra .was the employer, and Lawson a mere intermediary. This constituted a complete change -of front by introducing an entirely new • cause of action. .The amended pleading became a substitute for the original, and-upon it the issues were to be. determined. 4 Wait’s Pr. 690; Baylies’ Code PL 311.

The proofs did not warrant a recovery under: the amended.-pleading, and the justice properly found in favor of the defendant. , Nor could there be a personal judgment against Lawson, for by the amendment he was no longer an independent contractor, but a mere' agent of Durra,' the owner. •

The notice alleged no persoiial claim against-.Durra, and the assignment to .the plaintiff does not assume to transfer any claim

against Durra> but merely the lien and the moneys to be collected thereunder. This prevents us from examining the different questions raised by the appellant in her points, all of which are based on a supposed continuance of the lien, .which for all the purposes of the action seems to have been effectually waived.-

The judgment must be affirmed, with costs.

Daly, P. J., and Bischoff, L, concur.

Judgment affirmed, with costs.