and 106 New York State Reporter (64 App. Div. 596.) BURNHAM v. RAYMOND. SAME v. MURKETT. (Supreme Court, Appellate Division, Fourth Department. October 8, 1901.) 1. MECHANIC'S LIEN-FORECLOSURE-JUDGMENT-WRIT OF ASSISTANCE-APPEAL -RECORD-SUFFICIENCY. Where an order directing the enforcement of a writ of assistance does not show any papers to have been read on the motion therefor, and there is no stipulation by the attorneys, and the clerk's certificate does not state that the papers in the printed record were read or used on the hearing of the motion, the order will be reversed on appeal. 2. SAME ASSIGNEE OF OWNER-PARTIES CONCLUDED. The assignees of owners of property against which a mechanic's lien has been filed, whose assignments are subsequent in date to the filing of the lien, but prior to the commencement of an action to foreclose it. and who were not made parties to such action, cannot be bound by the judgment rendered therein, and an order directing the enforcement against such assignees of a writ of assistance issued on such judgment is improper. Appeal from Chautauqua county court. Action to foreclose a mechanic's lien by Hiram Burnham against Frank A. Raymond. From an order directing the enforcement of a writ of assistance issued on a judgment in favor of plaintiff against Elizabeth Raymond and John Murkett, the latter appeal. Reversed. Argued before ADAMS, P. J., and MCLENNAN, SPRING, and WILLIAMS, JJ. Thomas H. Larkins, for appellants. C. T. Chapman, for respondent. WILLIAMS, J. The order appealed from must be reversed, with costs. It is unnecessary to specify all the objections to the order appealed from. It is sufficient to say: 1. That the order recites no papers as having been read on the motion. The certificate of the clerk does not state that the papers in the printed record were read or used on the motion, and there is no stipulation by the attorneys. We have, therefore, no means of telling upon what papers the county court based the order. 2. The appeal was presented to this court upon the assumption that the writ of assistance was issued upon a judgment in an action to fore-. close a mechanic's lien upon a house, and to remove appellants from possession of the house and put respondent in possession thereof. And we gather from the papers printed in the record that this house was built by the respondent for one Frank A. Raymond upon lands owned by one Fisher (Raymond holding a lease of the land), with an agreement that the house should not become a part of the realty, but should be the personal property of Raymond; that Raymond did not pay respondent for building the house, and the respondent filed a mechanic's lien against the same on or about April, 1899; that Raymond's lease of the land expired May 15, 1899; that Fisher sold the land to one Wright, who leased the land to the appellant Mrs. Raymond from May 15, 1899, for one year; that Raymond sold the house. to appellant Murkett, who paid for it and took a bill of sale thereof dated June 27, 1899, and filed it in the town clerk's office June 29, 1899, and Murkett made an agreement with Mrs. Raymond that the house might remain on the land until her lease expired, May 15, 1900; that the respondent June 29, 1899, commenced an action against Raymond to foreclose his lien, but did not make the appellants parties to such action. The rights or claims of the appellants in the house were therefore acquired before the commencement of the foreclosure action, and they could not have been foreclosed by the judgment in the action. The judgment is not in the record, and we cannot tell whether it assumed to foreclose them or not. It will not do to say that the appellants acquired their rights after the filing of the lien, and therefore could be foreclosed without having been made parties to the action. They had a right to be heard as to the validity of the lien, and their right to retain possession of the house, and no judgment could be properly made depriving them of their rights, or writ of assistance issued to remove them from the house under such judgment, until they had been made parties to the action, and had had an opportunity to be heard as to their rights. Their rights were acquired before the action was commenced, but, if they had been acquired later, it does not appear that any notice of the pendency of the action had been filed before such rights were acquired. The writ of assistance, as against the appellants, was improperly granted, and the order appealed from in aid of such writ cannot be sustained. Order reversed, with $10 costs and disbursements, as upon one appeal, without prejudice to respondent's right to make another motion. All concur. (Supreme Court, Appellate Division, Second Department. October 24, 1901.) WILL-DEVISE TO SON-WORDS OF LIMITATION CONSTRUCTION-ESTATE OF DEVISEE-PURCHASER FROM DEVISEE-SPECIFIC PERFORMANCE. A testator, after directing payment of his debts, bequeathed to his wife an income of $10,000 for life, and on her decease the money to pass to his son, H., "to him and his lawful issue him surviving, forever." Certain household furniture was given to his wife, and the will then provided: "All the remainder of my estate, both real and personal, I devise and bequeath to my son, H., and his lawful issue him surviving, forever." The executors were given power to sell and convey the realty, if necessary, in the settlement of the estate. H. had no issue. Held that, as the word "issue" should be considered as one of limitation, and not of purchase, H. took title in fee to the realty, and the acceptance of a deed by a purchaser from him would be compelled in equity. Submitted controversy between John H. Hilliker as plaintiff and Charles Bart as defendant. Judgment for plaintiff. Argued before GOODRICH, P. J., and JENKS, WOODWARD, HIRSCHBERG, and SEWELL, JJ. John H. Steenwerth, for plaintiff. Fred. L. Gross, for defendant. JENKS, J. This is a submitted controversy to obtain a construction of the fourth provision of the will of George Nostrand, de and 106 New York State Reporter ceased. The testator first directed payment of his debts; second, he bequeathed to his wife, in lieu of dower, the use, income, and interest of $10,000 for life, and upon her decease the said sum to his son, Henry, to him and his lawful issue him surviving, forever; third, gave certain household furniture to his wife, and then provided: "(4) All the rest, residue, and remainder of my estate, both real and personal, I give, devise, and bequeath unto my son, Henry L. Nostrand, and his lawful issue him surviving, forever." He appointed his sister and his said son executors, and provided, in case it became necessary in the settlement of his estate for them to convey the whole or any portion, that they should have power to execute to the purchasers of the realty good and sufficient conveyances. thereof. It does not appear that there ever had been, or that there now is, any issue of Henry L. Nostrand. The general sense of the word "issue" includes all descendants. It has the same practical effect as the words "heirs of the body." Chwatal v. Schreiner, 148 N. Y. 684, 43 N. E. 166; Drake v. Drake, 134 N. Y. 220, 32 N. E. 114, 17 L. R. A. 664; Soper v. Brown, 136 N. Y. 244, 247, 32 N. E. 768, 32 Am. St. Rep. 731; Kingsland v. Rapelye, 3 Edw. Ch. 1; Schouler, Wills, 554. When employed to describe a devise to a person and his issue, it is considered as a term of limitation, not of purchase. Drake v. Drake, supra. The term, however, has been said to be "ambiguous," so that, notwithstanding its prima facie meaning as a word of limitation, it may be construed as a word of purchase when such intent is to be gathered from the context or from the provisions of the will. Authorities supra. I find nothing in context nor in any part of the will in this case that would justify a departure from the prima facie meaning of these words. I think that they were used as an expression of limitation for the vesting of the fee in Henry L. Nostrand. While, of course, this use was not necessary, it is "quite common," with the purpose of greater definition, or for greater certainty, or by way of precaution. Thurber v. Chambers, 66 N. Y. 42; In re Allen, 151 N. Y. 243, 45 N. E. 554; Clark v. Cammann, 14 App. Div. 127, 43 N. Y. Supp. 575. We are therefore of opinion that Henry L. Nostrand took a fee simple absolute in the real estate devised by the fourth paragraph of the will, and that when the said Henry L. Nostrand tendered the deed of the premises herein to plaintiff, and when he delivered such deed to plaintiff, he was so seised, and had a good and valid title thereto. It follows from the terms of the submission that the plaintiff must have judgment of performance against the defendant, without costs. All concur. (Supreme Court, Appellate Division, Second Department. October 24, 1901.) 1. COMPLAINT-EVIDENCE-VARIANCE-AMENDMENT. Where plaintiff alleged that he sold lumber to defendant at his request. for which he promised to pay, and plaintiff's evidence was that he sold and charged the lumber to a contractor who was building defendant's house, and that defendant thereafter promised to pay therefor, it was not error to deny plaintiff's motion to amend his complaint to conform to the proof, since such amendment would change substantially the claim of plaintiff, and therefore was not authorized by Code Civ. Proc. § 723. 2. SAME-WAIVER OF LIEN-REQUEST. Where plaintiff had sold lumber to a contractor who was building defendant's house, and had a lien for a portion thereof, and defendant promised to pay for such lumber if the lien was not enforced, and for that thereafter furnished, plaintiff may recover for that for which he relinquished his lien and for that thereafter furnished, under a com plaint alleging a sale to defendant. Appeal from trial term, Dutchess county. Action by Edward A. Cox against John Halloran. From a judgment in favor of defendant, plaintiff appeals. Reversed. Argued before JENKS, WOODWARD, HIRSCHBERG, and SEWELL, JJ. W. Farrington, for appellant. W. E. Hoysradt, for respondent. JENKS, J. Ducker & Co., builders, contracted with Halloran to build a house for him. For this purpose Ducker & Co. obtained lumber from the firm of which plaintiff is the surviving member. Plaintiff sues Halloran for a balance due upon the price of the material, and complains that between August 15, 1899, and December 27, 1899, Halloran became indebted to him in $918 for lumber furnished to Halloran by the said plaintiff, all at Halloran's special instance and request, and for which the said Halloran promised and agreed to pay the plaintiff. The plaintiff's testimony varied radically from his pleading. That testimony, together with his bills and statements, clearly shows that he made the sale to Ducker & Co., the contractors, and that he sought to hold Halloran upon his promise to pay the indebtedness of that firm for such material. In fact, he admitted as much. The learned counsel for the appellant, appreciating the variance, moved at the close of his case to amend the complaint to conform to the evidence. The defendant objected on the ground that this would change entirely the form of the action, and the learned trial court sustained the objection under exception. We think that this ruling was right. The amendment would have changed substantially the claim of the plaintiff, and therefore was not within the purview of section 723 of the Code of Civil Procedure. Wheeler v. Hall, 54 App. Div. 49, 66 N. Y. Supp. 257; Mea v. Pierce, 63 Hun, 400, 18 N. Y. Supp. 293, and cases cited; Benner v. Transportation Co., 80 Hun, 412, 30 N. Y. Supp. 290. In Wheeler v. Hall, supra, Woodward, J., cites the language of the court in Southwick v. Bank, 84 N. Y. 420, 429: "Pleadings and a distinct issue are essential in every system of jurisprudence, and there can be no orderly administration of justice without them. If a party can allege one cause of action, and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary." The case at bar affords an apt illustration of the wisdom of the rule. The plaintiff now insists that the judgment should be reversed. The defendant contends that the alleged promise proved was within and 106 New York State Reporter the statute of frauds. The plaintiff replies that before the statute can be invoked it must be pleaded. But the complaint was ordinary assumpsit, and there was no reason for the plea of the statute of frauds. It is now invoked to meet the shift of the plaintiff from his declaration to his proof of Halloran's promise to pay the debt of Ducker & Co. The defendant was not precluded from opposing the motion for the reason that it was elicited upon the issue whether the lumber had been sold to the defendant as charged in the complaint. The doctrine of Raabe v. Squier, 148 N. Y. 81, 42 N. E. 516, does not certainly apply to any items delivered previous to the period before the early part of October, for the plaintiff does not contend that he had any conversation with defendant, or even with Thomas, the alleged agent of the defendant, before that time. But there is testimony that the material delivered after the early part of October was upon the express request of the defendant. It is stated that some transactions relative to the material last referred to were had with Thomas, the superintendent and alleged agent of the defendant. The authority of Thomas was denied, but I think that this question of agency should have been determined by the jury. Bank Note Co. v. Mackey, 83 Hun, 511, 31 N. Y. Supp. 1057, affirmed in 155 N. Y. 685, 50 N. E. 1117, and 157 N. Y. 674, 51 N. E. 1090. The liability of the defendant, then, for the material delivered after the early part of October, might be litigated under the pleadings (Raabe v. Squier, supra), and should have been submitted to the jury. And the same is true as to any material upon which the plaintiff might yet have enforced a lien, in view of the testimony that Thomas requested the plaintiff not to file any lien thereon (Alley v. Turck, 8 App. Div. 50, 40 N. Y. Supp. 433), provided, of course, Thomas was vested with authority to make such request. The judgment must be reversed, and a new trial granted, with costs to abide the event. All concur. (64 App. Div. 520.) DIBBLE v. RICHARDSON et al. (Supreme Court, Appellate Division, Second Department. October 18, 1901.) WILLS-CONSTRUCTION-RELEASE OF INDEBTEDNESS. A will provided that any debt due the testator from A. at testator's death should not be collected. The wife of A. executed a mortgage to testator, which recited that the wife was justly indebted to testator in the sum so secured. There was no evidence, in a suit by the executor to collect such debt, to show that the testator accepted such mortgage with the understanding that it was merely to secure the debt of A. to testator. Held, that such debt was not released by the will. Goodrich, P. J., and Sewell, J., dissenting. Appeal from special term, Kings county. Suit to foreclose a mortgage by John L. Dibble, as executor of the last will and testament of Mary Callahan, deceased, against Annie C. Richardson and Asa B. Richardson, coexecutor of Mary Callahan, deceased. From a decree of the special term of the supreme |