Defendant appeals from a judgment granting foreclosure of a mechanic’s lien against her property. On August 1, 1943, plaintiff and defendant orally agreed that plaintiff do certain work in the repair and alteration of defendant’s premises. Plaintiff completed the work stipulated to be performed on January 7, 1944. On June 27, 1944, plaintiff did some additional work in the repair of a faucet. The mechanic’s lien filed on or about July 27, 1944, included not only the work done on June 27,1944, but also the work completed on January *737, 1944. The lien is invalid because it was not filed within the time required by section 10 of the Lien Law. There was no proof that the extra work done on June 27, 1944, was part of the August 1, 1943, contract, nor that it was anticipated when the original contract was made, nor that it was in continuance of any work done under that contract. (McLean v. Sanford, 26 App. Div. 603; Steuerwald v. Gill, 85 App. Div. 605.)
The minority agrees that the lien is invalid, but believes that plaintiff may have a personal judgment for the amount mentioned in the lien; In my opinion this court is powerless, to grant a money judgment under the provisions of section 54 of the Lien Law. That statute “ does not require him [plaintiff] to demand a personal judgment in the event of the failure of his lien. ‘ It is intended to afford him a privilege — not to subject him to compulsion ’ ”. (Di Menna v. Cooper & Evans Co., 220 N. Y. 391, 395.) If plaintiff had demanded a personal judgment against the defendant, or judgment for a deficiency arising after a sale, that would have been sufficient to enable him to recover a money judgment (Bradley & Currier Co. v. Pacheteau, 175 N. Y. 492; Abbott v. Easton, 195 N. Y. 372; Ryan v. Train, 95 App. Div. 73), but he chose not to demand a personal judgment in any form. An action to foreclose a mechanic’s lien is an action in equity. (Schillinger Cement Co. v. Arnott, 152 N. Y. 584, 590; Kenney v. Apgar, 93 N. Y. 539, 550.) In the case at bar plaintiff demanded equitable relief of foreclosure and sale, together with “ such other, further, and different relief and order that may be equitable ”. (Underscoring mine.) Section 479 of the Civil Practice Act, so far as material, provides: “ Where there is an answer, the court
may permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issues.” Although that statute has been in force for one hundred years (L. 1848, ch. 379, § 231; Code Civ. Pro., § 1207), it has been consistently held that, where the complaint is framed in equity and equitable relief alone is demanded, the fact that the prayer for relief also demands such other and further relief as may seem just and proper does not justify the granting of legal relief if the action does not lie in equity. (Terner v. Glickstein & Terner, Inc., 283 N. Y. 299, and cases cited.) “ There was nothing in the whole framework of the complaint, nor in the prayer for relief that would lead ” this defendant to infer that a judgment at law would or could be taken against her. (Kelly v. Downing, 42 N. Y. 71, 78.) Therefore, it may not be inferred that defendant waived her right to a jury trial by her failure *74to move for settlement of issues therefor, or formally to demand the same at the trial. (Defendant would be deprived of her constitutional right to a jury trial if legal relief be granted in the situation here presented.
Brigham v. Duany (211 App. Div. 869), cited by the minority and decided by this court, is not to the contrary. That was an action to foreclose' a lien. The tenant and the owners were parties defendant. The improvements were made under written contract with the tenant, and with the knowledge and consent of the owners, who derived pecuniary benefit and increased rental value from the improvements. The complaint, in addition to foreclosure of the lien, demanded personal judgment for the full amount against the tenant and for a deficiency. I quote the demand: “ That the plaintiffs have personal judgment against the defendant, Salvatore Cudia [tenant] for the sum of * * * ($1194.45) * * * and for any deficiency that may remain due them [plaintiffs] after such sale.” Obviously personal judgment for a specified amount is demanded against the defendant-tenant. However, the demand for the deficiency is against the defendants-owners because such a judgment could be entered against no one but the owners. Hence the demand for the deficiency judgment was sufficient to sustain the personal judgment against the owners within the doctrine of the cases cited (supra).
In Kane v. Hutkoff (81 App. Div. 105) the equity court refused a personal judgment when the lien failed because there was no personal judgment demanded against the owner. This is in accordance with the general rule that, where some ground of equitable jurisdiction is alleged in a complaint but fails of proof in its entire scope on the trial, and it appears that there never was any substantial cause for equitable interference, the court will not retain the action and grant purely legal relief, but will dismiss the complaint. (Jackson v. Strong, 222 N. Y. 149, 153-154.) The rule contended for by the minority that, when equity has “ assumed ” jurisdiction, that is, when equity has obtained jurisdiction of the parties and the subject matter of the action, it may adapt the relief to the exigencies of the case, does not apply here. “ That rule applies when the general basis of fact, upon which equitable relief was sought, has been made out but, for some reason, it becomes impracticable to grant such relief, or where it would be insufficient, and not to a case like this, where it appears that there never was in fact ’any ground for equitable relief whatever, but the sole remedy *75was an action at law.” (Dudley v. Congregation, etc., of St. Francis, 138 N. Y. 451, 459; International Photo Recording Machines v. Microstat Corp., 269 App. Div. 485.)
The judgment should be reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs. Findings of fact and conclusions of law inconsistent herewith should be reversed and new findings and conclusions made.