By the Court.
Ingraham, First J.The plaintiffs claim to recover for work, labor and materials in repairing and rebuilding certain portions of building numbers 75 and 77 Nassau street. They aver that the same were worth $6,500. And they claim a balance of $1,800.
The defendant alleges a special agreement to do the work, by contract, for $6,000, which contract is substantially set out in the answer; and the answer claims, by way of defence, that such contract was not performed. The answer also avers that the work was not done in a good and workmanlike manner, specifies various particulars in which the work was defective, and claims $1,500 damages.
The plaintiffs reply, denying that they failed to keep the agreement in any of the particulars mentioned.
Upon the hearing before the referee, the defendant claimed to confine the plaintiffs to the contract. This was overruled by the referee, and he admitted proof of the value of the work, labor and materials furnished, and found as fact that the work, &c., was performed in manner and form as specified in the said agreement, and was worth $8,000.
It is difficult from these pleadings to say what issue was properly before the referee. The complaint was for work, labor and materials. The answer set up a special contract, which was admitted by the reply. Clearly the referee had no right, under such an issue, to try the questions as to the value of the plaintiffs’ work and materials, instead of confining him to his right of action under the contract.
There are cases where the character of the work originally commenced under' a contract is so far departed from as to justify a departure from it entirely, and to allow a reeoverv *515for such work and materials according to its value, but that rule has been carried sufficiently far in allowing contracts to be departed from, without extending it to a case in which the plaintiffs admit a contract, and claim to have performed it.
Even admitting that the plaintiffs could have resorted to this mode of recovery, the defence set up in the answer was sufficient to enable the defendant to show that the work was not done in a good and workmanlike manner. (Grant v. Button, 14 J. R. 377.) Although, as one defect stated was, that the lower floor was not level, the general allegation that the work was not done in a proper manner was sufficient to permit him to show that the other floors were also out of the level. If this clause was too general, a motion should have been made to make it more' specific. As the pleadings stood, he was at liberty to show such defects at the trial, although not specifically set up in the answer.
I think, also, the referee should have permitted Conway to be recalled, to state the damage from the want of level on the first floor. Where a party suffers a witness to leave the stand without asking a question which he has inadvertently omitted, it is not usual to prevent the correction of such an error, while the party has the case with him and before he has rested. It is, I know, a matter of discretion with the judge or referee, to decide how far he will permit a reexamination of a witness; and if this were the only ground, it could not with propriety be held sufficient to reverse a judgment, although it is apparent that such neglect has operated to the defendant’s inj ury. (Gibson v. Pearsall, 1 E. D. Smith, 90; Beach v. Raymond, 2 id. 497.)
The ruling as to the estimates of other persons than the plaintiffs for the work, was correct. It was no evidence of the value of the work. The persons who made those estimates could have been examined as witnesses, and in such cases they would have been asked as to the value of the work, &c., and not at what price they submitted estimates.
Other questions are raised as to the rulings of the referee, but it is unnecessary now to discuss them.
*516The judgment must be reversed, and the case sent back to the referee, costs to abide the event, unless the plaintiffs see fit to move for leave to amend their complaint, in which case the order of reference will be discharged, and a new order made after the issues are settled.
Ordered accordingly.