While I am bothered by that part of the record which reads “ Counsel for defendant failing to ask for an amendment,” etc., and while it inclines me to say that all this annoyance could have been easily obviated by a motion at that time, still so impressed am I that this claim of the plaintiff is questionable and dubious that I believe' that justice can best be conserved by whipping the issues out before a jury. It may be that ordinarily we would be justified in treating the answer as asserting a mere negative pregnant, but we are bound also to observe that the complaint herein merits criticism and to conclude that one pleading was as good as the other, and if the complaint is bad the answer should not be disturbed. Baxter v. McDonnell, 154 N. Y. 432. The complaint is pressed not to recover for work done on or materials furnished to the building which defendant owns, but for expenditures made while figuring on contract to get this very work and does not allege any agreement to pay upon the part of defendant, in fact the whole thing savors of a disappointed contractor trying to get even for loss of contract and defendant should have a proper day in court.
Judgment affirmed, with costs.