The present action is to recover damages for the breach of a building contract, plaintiff alleging that he was employed by defendant to make certain additions and improvements upon a building and that, after doing some work, he was unlawfully discharged. He filed a mechanic’s lien, and on the same day began two actions, one to foreclose the mechanic’s lien for work done and materials furnished, and the present one to recover damages. The action to foreclose the mechanic’s lien was first tried and resulted in a judgment for plaintiff, which has been paid. Defendant now seeks to set up that judgment as a bar. Without expressing any opinion as to the sufficiency of the plea, we think that defendant should be afforded an opportunity to present it in such a manner that it can be properly adjudicated upon and tested on appeal. The defendant, however, has delayed this application for some eight months, and in the meantime the cause has reached the day calendar. The defendant should not be permitted to profit by his delay. The order appealed from will, therefore, be reversed, without costs, and the motion granted, upon condition, however, that the supplemental answer be served within five days, and if plaintiff so elects the cause shall retain its present position upon the calendar. Ingraham, P. J., Laughlin, Dowling and Hotchkiss, JJ., concurred. Order reversed, without costs, and motion granted on conditions stated in opinion. Order to be settled on notice.