Alleging the performance- of work, labor, and services for the defendants in and about premises owned by them, the plaintiffs brought this action for the foreclosure of a mechanic’s lien, with no demand for personal judgment. There being no proof of ownership of the premises, the alleged lien could not be enforced as such (Code Civ. Proc. §§ 3399, 3408) J but the court still had jurisdiction of the action for the purpose of rendering personal judgment against any defendant contractually liable to the alleged lienor, according to the express provision of the statute (Code Civ. Proc. § 3412).
Where the facts alleged do not support a cause of action ex contractu against the person sought to be held liable, personal judgment cannot be rendered under section 3412 (Kane v. Hutkoff, 81 App. Div. 105, 81 N. Y. Supp. 85); but the averments of the complaint in the present action were obviously sufficient, and a demand for personal judgment was all that the pleader omitted. To permit this addition to the prayer for judgment to be supplied by amendment at the trial was within the power of the justice (Municipal Court Act [Laws 1902, p. 1542, c. 580] § 166), and did not amount to the substitution of a new cause of action, since the relief was incidental to the very action itself, by the force of the statute. If the defendants were actually surprised and required an adjournment, ample opportunity to state the fact was given them, as appears from the record; but the only objection to the amendment was based upon the formal ground of surprise, supported by no reason why the trial should not proceed, and we cannot find reasonable ground for holding that there was an improper exercise of discretion.
So far as error is asserted in the exclusion of evidence offered by these defendants upon the issue of nonperformance tendered by their counterclaim, it appears that each question excluded was improper in form, because calling for an estimate of value, based upon the conclusion of the witness as to what the plaintiffs should have done, thus involving the substitution of the witness’ judgment for that of the jury upon the question of performance.
The judgment should be affirmed, with costs. All concur.