The plaintiff brought an action to recover for work done under a contract calling for the removal of certain amounts of earth and rock, alleging in his complaint that said work was “at the agreed price and of the reasonable value and worth of Three hundred and Eighty-six ($386.) dollars.” A large part of the rock, which according to the terms of the contract should have been excavated, has not been removed. Upon this ground the Appellate Term, upon the previous appeal from the judgment of the first trial, ordered the judgment for the plaintiff to be reversed. Toher v. Schaefer, 45 Misc. Rep. 618, 91 N. Y. Supp. 3. As the evidence upon the present trial shows the same facts, the former decision of this court must be controlling.
The contention of the plaintiff that his complaint and proofs are good as a quantum meruit count was plainly negatived by the *472opinion of this court upon the former appeal. Proofs of the reascmable value of work may sometimes be available as a quantum meruit count, when the complaint alleges reasonable value as well as agreed compensation.. But when, as in the present rase, the proofs show that the work called for in the contract was not performed with substantial completeness, no such quantum meruit count can be established.
Upon an appeal from an order in the present case imposing upon the plaintiff the payment of a larger sum than $10 as a condition of his right to amend his complaint, this court dismissed the appeal, upon the ground that such an order was not appealable. Toher v. Schaefer, 92 N. Y. Supp. 795. This decision is not inconsistent with the view that the present appeal from the order for the defendant brings up for. review the propriety of this order. An appeal from ajudgment in the Municinal Court brings up for review the entire record. Thus, it has been held that an appeal from a judgment irt the Municipal Court brought up for review the order denying a motion to vacate an attachment. J. H. Mohlman Co. v. Landwehr (Sup.) 83 N. Y. Supp. 1073. The power and the duty of the Municipal Court to allow an amendment of the pleadings for the promotion of substantial justice has been extended to include an amendment that involves a new cause of action. Bunke v. N. Y. Telephone Co. (Sup.) 91 N. Y. Supp. 390; Hawkes v. Burke, 34 Misc. Rep. 189, 68 N. Y. Supp. 798. Upon the appeal from the order above mentioned, this court expressed its opinion that, according to section 335 of the Municipal Court Act (Laws 1902, p. 1588, c. 580) :
“A justice of the Municipal Court can in no event impose a greater sum than $10 as a condition for allowing an amendment to a pleading.”
Upon the present facts, therefore, the order imposing upon the-plaintiff the payment of a larger sum than $10 as a condition of his .right to amend his complaint was improper, and the judgment for the defendant should be reversed.
Judgment reversed, with leave to the plaintiff to amend his complaint on payment of $10 costs.