(dissenting in part). I concur for reversal insofar as concerns the holding that the lien is invalid, but dissent from the dismissal of the complaint on the ground that the plaintiff is entitled to a personal judgment under the findings of the trial court in the amount fixed by findings 14 and 23. (Civ. Prac. Act, § 479; Lien Law, § 54; Brigham, v. Duany, 211 App. Div. 869, mod. on another ground, 241 N. Y. 435; Prime v. Hughes, 174 App. Div. 406; Schenectady Contracting Co. v. Schenectady Ry. Co., 106 App. Div. 336; Abbott v. Easton, 195 N. Y. 372, 376; Benedict v. Benedict, 85 N. Y. 625; A. Hall Terra Cotta Co. v. Doyle, 133 N. Y. 603; Vinton v. Board of Supervisors, 89 Hun 582, 587; Di Menna v. Cooper & Evans Co., 220 N. Y. 391,395.)
Section 479 of the Civil Practice Act, limits a judgment “ Where there is no answer ” to “ that demanded in the complaint.” Here there was an answer and a trial. The plain and unequivocal language of the section further provides, supplementing section 54 of the Lien Law, that “ Where there is an answer ” plaintiff may have “ any judgment consistent with the case made by the complaint and embraced within the issues.” There is no provision in section 479 that lt a judgment consistent with the case made ” may only be given when the complaint contains a demand or prayer for relief of the same character or breadth of “ any judgment consistent with the case made.” If such a demand or prayer for relief was present there would be no need for the enactment authorizing the giving of a judgment of the character indicated. The legislative provision would be supererogatory. The very headnote of the section “ Demand as affecting amount of judgment ” makes crystal clear that the grant of power in the section is not limited or controlled by the presence or absence in a complaint of a particular form of demand or prayer when an answer has been interposed (Benedict v. Benedict, 85 N. Y. 625, supra; Vinton v. Board of Supervisors, 89 Hun 582, 587, supra; A. Hall Terra Cotta Co. v. Doyle, 133 N. Y. 603, supra). The section contains no limitation, if there be an answer, in respect to what the demand for judgment was; hence plaintiff should have a personal judgment pursuant to section 54 of the Lien Law, even *76though his lien failed under the proof. Nothing in the cases cited in the prevailing opinion is to the contrary. The Terner case (283 N. Y. 299) concerned a mere matter of pleading. There the court did not assume jurisdiction in equity in respect of any matter; hence the situation did not come within the .pertinent general rule that when equity “ gains jurisdiction of a case for one purpose, it may retain it generally,” to do complete justice between the parties. Here on a trial the court took jurisdiction in equity, as it was required to do under the pleadings; hence it retains jurisdiction to do that which section 479 of the Civil Practice Act, expressly requires it to do, give “ judgment consistent with the case made ” under the proof.
An examination of the record in Abbott v. Easton (195 N. Y. 372, supra) discloses that the situation herein is paralleled in that case. There, as here, the lien failed. There, despite that failure, plaintiff had personal judgment. ■
Section 479 of the Civil Practice Act, is not concerned, where an answer has been interposed, with the character of the demand for judgment, or whether any demand has been made. In this it merely enforces the principle of the adjudicated cases, under section 54 of the Lien Law. In Prime v. Hughes (174 App. Div. 406, supra), there was no demand for a personal judgment. One was, nevertheless, granted, although the lien, the foreclosure of which originally gave equitable jurisdiction, had failed. That holding was approved by this court in a lien case, Brigham v. Duany (211 App. Div. 869 [1924], mod. on another ground, 241 N. Y. 435, supra), where there was no demand for a personal judgment against defendants Duany, yet one was given. There the contract was between a tenant and the plaintiff. The sole demand for personal judgment was against the tenant. There was no demand for a personal judgment against the owners. The paragraph containing the demand for personal judgment asked one solely against the tenant, and also asked for a deficiency judgment against the tenant. In analyzing that prayer for relief the question was not against whom a deficiency judgment might well have been demanded and obtained, but against whom was a deficiency judgment demanded. There can be but one response — that it was demanded solely against the tenant. Despite there being, as this court found in that case, no demand for personal judgment against the owner, a personal judgment was granted against the^ owners on the authority of Prime v. Hughes (supra), even though there was no contract between the plaintiff and the owners Duany. Any different view of the language in that complaint is plain distortion. The prevailing opinion herein overrules the Brigham case, without so stating.
*77In the instant case there is a catch-all demand for “ such-other, further, and different relief and order that may be equitable ”. This somewhat awkward phrasing apprised the defendant that relief of the character contemplated by section 479 of the Civil Practice Act, was being demanded, which, of course, included a personal judgment. Certainly a personal judgment- under the findings herein is 11 equitable,” in the language of the prayer for relief. It is also consistent with the rule that where equity has obtained and assumed jurisdiction it may retain it to give a personal judgment under long-settled authority cited above.
The case of Kelly v. Downing (42 N. Y. 71, 78) is wholly inapposite. It was there decided that a demurrer was not an answer under section 275 of the Code of Procedure, a statutory predecessor of section 479 of the Civil Practice Act; hence a plaintiff could not have relief of a character not demanded in the complaint. There being no answer, that would be so under the present statute and predecessor statute. But here there was not only an answer, which is the only condition precedent set out in section 479, but there was an assumption of jurisdiction by equity and a trial.
The case of Deane Steam Pump Co. v. Clark (84 App. Div. 450, 454) concerned a defendant who had not filed a mechanic’s lien and who, in his answer, demanded no relief against a codefendant owner, and the question presented was seasonably raised. Here no such question, irrespective of personal judgment, was raised, even on this appeal.
The case of Kane v. Hutkoff (81 App. Div. 105) is not controlling. Although the lien there failed, a personal judgment against the owner was refused because there was no pleading or proof of any contract between the plaintiff and the owner, or any allegation of liability on the part of the owner to the plaintiff, as well as no demand for personal judgment.' The refusal, therefore, of a personal judgment was justifiable on the ground that a judgment against the owner would not be “ consistent with the case made by the complaint and embraced within the issues.” (Civ. Prac. Act, § 479.) In the instant case, there was pleading and proof and a finding of a contract between the plaintiff and the owner. Moreover, the Kane case may not properly be given precedence in this court over the later cases of Prime v. Hughes (174 App. Div. 406, supra) and Brigham v. Duany (211 App. Div. 869, mod. on another ground, 241 N. Y. 435, supra).
A question in respect of a jury trial was not raised on this appeal nor is it presented by this record. On the trial there *78was no intimation by the defendant that she desired one in respect of whether any moneys were owing by her to the plaintiff. The record herein, by way of excluding any such contention, is stronger than is the record (which I have examined) in Abbott v. Easton (195 N. Y. 372, 376, supra), and it was there held, ‘ ‘ The right to a trial by jury can be waived and it is waived by going to trial in apparent assent to a trial without a jury ”, which statement of principle takes precedence over any vague dicta in Deane Steam Pump case (supra).
A contrary view disregards the ancient equity principle that when a Court of Chancery acquires jurisdiction for any purpose it will, as a general rule, especially in mechanic’s lien cases, determine the whole case, although in so doing it may decide questions which, standing alone, would furnish no basis for equitable jurisdiction. (Bispham’s Principles of Equity [10th ed.], p. 57; Rathbone v. Warren, 10 Johns. 587; King v. Baldwin, 17 Johns. 384; Hawley v. Cramer, 4 Cow. 717, 727.) This principle was given effect in Abbott v. Easton {supra) where, as here, no question in respect of a jury trial was raised at the trial; likewise in Prime v. Hughes (supra); Schenectady Contracting Co. v. Schenectady Ry. Co. (106 App. Div. 336, supra); Benedict v. Benedict (85 N. Y. 625, supra); A. Hall Terra Cotta Co. v. Doyle (133 N. Y. 603, supra) and Vinton v. Board of Supervisors (89 Hun 582, 587, supra).
The denial of a personal judgment represents unrealistic retrogression which no authoritative case requires. There is no lien case where equity assumed jurisdiction and refused personal judgment when the lien failed, where, as here, there was a finding, upon the evidence, of a contract between the plaintiff and the defendants or owners of the property which the plaintiff-improved. In such situations personal judgments, consistent with the proof, have invariably been granted to the plaintiffs.
Hagarty, Acting P. J., and Sneed, J., concur with Johnston, J.; Caeswell, J., concurs for reversal insofar as the holding is that the lien is invalid, but dissents from dismissal of the complaint, on the ground that plaintiff is entitled to a personal judgment under the findings of the trial court, in the amount fixed by findings 14 and 23, with opinion, in which Adel, J., concurs.
Judgment of the County Court, Nassau County, 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 are reversed and new findings and conclusions will be made. Settle order on notice.