Gambling v. Haight , 5 Daly 152 ( 1874 )

Loew, J.

After issue has been joined in an action or proceeding for the foreclosure of a mechanic’s lien, the same is to be tried in like manner as any other civil action (Laws of 1863, chap. 500, § 5; Doughty v. Devlin, 1 E. D. Smith, 625 ; Hubbell v. Schreyer, 4 Daly, 367, 368). The provisions of the Code of Procedure are therefore as applicable to such a proceeding as they are to an ordinary action, except in so far as> they may be inconsistent with the lien act.

By section 111 of the code, the court is authorized to permit either party, on motion, to make and file a supplemental pleading alleging facts material to the case, of which he was ignorant when the former pleading was made, or which have arisen since that time. It will thus be seen that before leave to file and serve such a pleading can be given, it must be made to appear:

1st. That the matters set up in the proposed supplemental pleading are in aid of or material to the case; and,

2d. That the party was ignorant of those matters or facts when his former pleading was made; or else that they have occurred since that time. But after these two prerequisites have been complied with, the court should, in the exercise of a sound yet liberal, judicial discretion, allow the supplemental pleading to be filed, on proper terms, whenever it would be in furtherance of justice to do so (Harrington v. Slade, 22 Barb. 161; Hoyt v. Sheldon, 4 Abb. Pr. 59). This discretion does not, however, extend to permitting an entirely new and independent cause of action to be incorporated or introduced into the case by a supplemental pleading (Bostwick v. Menck, 4 Daly, 68).

In the present instance, the defendant Jones, in his supplemental pleading, has set up facts which are material to the case. They do not, as has been argued, constitute a new or different cause of action, but simply vary the relief to which he was entitled, under the original answer or statement of his claim. It is within the province of a supplemental pleading to present such matters to the court (Bostwick v. Menck, sujpra; Hasbrouck v. Shuster, 4 Barb. 285); and the affidavits upon which the motion was based, show that they did not come to the knowledge of the defendant Jones until after the trial before the referee had been commenced. The learned judge, at special term, was therefore warranted in granting the application, and the order appealed from should be affirmed.

Daly, Ch. J., and Larremore, J., concurred.

Order affirmed.