By the Court. Woodruff, J.
The proceeding is instituted to foreclose a lien, claimed under the act for the better security of mechanics, &c., passed July 11th, 1851.
It appears that the defendant (the owner of the building in [741]*741question) entered into a contract with, one Henry for its erection, on the 20th day of May, 1851, and that the building was erected in pursuance of that contract. The plaintiffs’ claim for labor and materials done and furnished to the said Henry, (towards the erection of the building,) after the passage of the act, and the recovery herein, was for an amount claimed to have been done and furnished after the act took effect.
The defendant insists, that inasmuch as his agreement with Henry (the contractor) was made before the act was passed, the act cannot be applied to it. And that if the act can be said to embrace in its terms work and materials done or furnished in conformity with such an agreement, it is, so far, unconstitutional, because, 1st, it imposes a liability upon the owner to pay a different party from the one he contracted to pay; and, 2d, because it does not permit the owner to make the same defences which he might make to the claim of the contractor; such as a counter claim, by way of set off, or recoupment, or payments made before they are due, according to the terms of his contract.
The construction given by this court to the act in question, in Doughty v. Devlin, general term, May, 1852, (ante, p. 625,) by which we have since that time been governed, relieves the act from any imputation of unconstitutionality upon the grounds here urged. Shortly after that decision, this precise point was raised before me at special term, and it was then held, that these objections did not warrant us in saying that the law was, in this respect, unconstitutional. That the effect of the law was to enable one who performed work and labor, &c., after the act took effect, to acquire a lien, which should have an operation somewhat in the nature of an attachment of the fund in the owner’s hands, and compel the application of it to the payment of the contractor’s debt. The judgment in these proceedings may be regarded as working an assignment to the claimant of the moneys due to the contractor. It does not, in this view, alter or impair the contract between the owner and contractor.
Whether, in a proceeding in favor of a laborer, material [742]*742man, or sub-contractor, the owner may set up as a defence a set off, or counter claim, against the contractor in his own. favor, or payments made by the owner to the contractor before they became due, by the terms of the contract, it is not necessary to say. No such fact appears in this case, and the question appertains, not to the validity, but to the construction, of the act. ' If it appeared that such payment was made with intent thereby to defraud the laborers or material men, and defeat the beneficial design of the act, doubtless such payments would be deemed a fraud upon the law, and no defence. But I have no doubt that a payment made before the act took effect, though made before it became due, and a set off then existing, are both available to the owner; and I have as little doubt, that the owner may recoup his damages for the default of the contractor in the performance of his contract.
The views expressed in Kaylor, et al. v. O'Connor, in special term, April, 1853,
In Owens v. Ackerson, a set off was allowed when the contractor was himself the plaintiff in this proceeding. (Ante, p. 691.)
In Sullivan v. Brewster, et al., this court, in general term, re-affirmed the doctrine of Doughty v. Devlin, and held, that the act applies to cases where the contract was made before its passage, if the labor, &c., was performed after the act took effect. (Ante, p. 681.)
The discussion to be found in the opinions given in the various cases above referred to, render it unnecessary for me to repeat the views then expressed.
The next ground urged for a new trial is, that the plaintiff did not sufficiently show that the amount of the recovery was due to him.
The defendant answered under oath, and in the answer he states expressly, that he is informed and believes that the con[743]*743tractor (Henry) has given to the plaintiffs his promissory note for $166 96, and that the note was received by the plaintiffs, to be applied on account of the labor and materials for building the houses in question, and for which labor and materials the plaintiffs claim the lien in this proceeding. This is a clear admission of the performance of the work, &c., to that amount. It bears no other construction. The language of a pleading is always to be taken most strongly against the pleader, and if this averment did admit of the equivoque claimed for it by counsel on'the argument,the plaintiffs have a right to use it as an admission, if it can bear that interpretation.
The.plaintiffs had a right, therefore, to claim to the extent of $166 96, without further proof of their performance, and that is the amount which (on the production of the note on the trial, as evidence that it remained in their hands unpaid) they did recover;
But the defendant’s counsel insists, that the judge ought to have granted his motion to amend his answer, on the trial, by striking out this admission. The exercise of the power to allow amendments on the trial must rest in sound discretion, and be exercised with a view to promote justice. I am not aware that a case has arisen in which a party has been permitted to retract a sworn admission. If that be proper in any case, it must be upon very satisfactory evidence that the party has been deceived or misled, or that his pleading was put in under a clear mistake as to the facts. No such proof was exhibited here as the ground of the motion, and I think leave to make such amendment was properly withheld. It follows, of course, that the defendant’s offer to show that the materials furnished were not used in the buildings, was properly rejected. This proof was not offered in support of the motion to amend, or to show that the defendant had answered under a misapprehension of the facts, but as a substantive defence. Clearly he could not urge a defence, inconsistent with his answer, in contradiction of his own oath.
The defendant further insisted that the plaintiffs, having [744]*744taken the contractor’s note for the amount of their claim, could not afterwards proceed under the statute and acquire a lien, and that the note should be regarded as payment.
I need hardly say, that giving a note of the purchaser for goods is not payment. The note of a third person is payment, if expressly received as payment; but the note of the purchaser is a mere security or evidence of the indebtedness, and of the term of credit given. If the note is not paid at maturity, the vendor may resort to the original contract, and proceed for the consideration, producing and canceling the note on the trial.
Nor can I find any reason for holding, that taking the con-' tractor’s note, deprives the laborer or material man of the benefits of the act in question, if such note be not paid. No reason was suggested by the defendant’s counsel. The debt still subsists.
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By the Court. Woodruff, J.
The proceeding is instituted to foreclose a lien, claimed under the act for the better security of mechanics, &c., passed July 11th, 1851.
It appears that the defendant (the owner of the building in [741]*741question) entered into a contract with, one Henry for its erection, on the 20th day of May, 1851, and that the building was erected in pursuance of that contract. The plaintiffs’ claim for labor and materials done and furnished to the said Henry, (towards the erection of the building,) after the passage of the act, and the recovery herein, was for an amount claimed to have been done and furnished after the act took effect.
The defendant insists, that inasmuch as his agreement with Henry (the contractor) was made before the act was passed, the act cannot be applied to it. And that if the act can be said to embrace in its terms work and materials done or furnished in conformity with such an agreement, it is, so far, unconstitutional, because, 1st, it imposes a liability upon the owner to pay a different party from the one he contracted to pay; and, 2d, because it does not permit the owner to make the same defences which he might make to the claim of the contractor; such as a counter claim, by way of set off, or recoupment, or payments made before they are due, according to the terms of his contract.
The construction given by this court to the act in question, in Doughty v. Devlin, general term, May, 1852, (ante, p. 625,) by which we have since that time been governed, relieves the act from any imputation of unconstitutionality upon the grounds here urged. Shortly after that decision, this precise point was raised before me at special term, and it was then held, that these objections did not warrant us in saying that the law was, in this respect, unconstitutional. That the effect of the law was to enable one who performed work and labor, &c., after the act took effect, to acquire a lien, which should have an operation somewhat in the nature of an attachment of the fund in the owner’s hands, and compel the application of it to the payment of the contractor’s debt. The judgment in these proceedings may be regarded as working an assignment to the claimant of the moneys due to the contractor. It does not, in this view, alter or impair the contract between the owner and contractor.
Whether, in a proceeding in favor of a laborer, material [742]*742man, or sub-contractor, the owner may set up as a defence a set off, or counter claim, against the contractor in his own. favor, or payments made by the owner to the contractor before they became due, by the terms of the contract, it is not necessary to say. No such fact appears in this case, and the question appertains, not to the validity, but to the construction, of the act. ' If it appeared that such payment was made with intent thereby to defraud the laborers or material men, and defeat the beneficial design of the act, doubtless such payments would be deemed a fraud upon the law, and no defence. But I have no doubt that a payment made before the act took effect, though made before it became due, and a set off then existing, are both available to the owner; and I have as little doubt, that the owner may recoup his damages for the default of the contractor in the performance of his contract.
The views expressed in Kaylor, et al. v. O'Connor, in special term, April, 1853,
In Owens v. Ackerson, a set off was allowed when the contractor was himself the plaintiff in this proceeding. (Ante, p. 691.)
In Sullivan v. Brewster, et al., this court, in general term, re-affirmed the doctrine of Doughty v. Devlin, and held, that the act applies to cases where the contract was made before its passage, if the labor, &c., was performed after the act took effect. (Ante, p. 681.)
The discussion to be found in the opinions given in the various cases above referred to, render it unnecessary for me to repeat the views then expressed.
The next ground urged for a new trial is, that the plaintiff did not sufficiently show that the amount of the recovery was due to him.
The defendant answered under oath, and in the answer he states expressly, that he is informed and believes that the con[743]*743tractor (Henry) has given to the plaintiffs his promissory note for $166 96, and that the note was received by the plaintiffs, to be applied on account of the labor and materials for building the houses in question, and for which labor and materials the plaintiffs claim the lien in this proceeding. This is a clear admission of the performance of the work, &c., to that amount. It bears no other construction. The language of a pleading is always to be taken most strongly against the pleader, and if this averment did admit of the equivoque claimed for it by counsel on'the argument,the plaintiffs have a right to use it as an admission, if it can bear that interpretation.
The.plaintiffs had a right, therefore, to claim to the extent of $166 96, without further proof of their performance, and that is the amount which (on the production of the note on the trial, as evidence that it remained in their hands unpaid) they did recover;
But the defendant’s counsel insists, that the judge ought to have granted his motion to amend his answer, on the trial, by striking out this admission. The exercise of the power to allow amendments on the trial must rest in sound discretion, and be exercised with a view to promote justice. I am not aware that a case has arisen in which a party has been permitted to retract a sworn admission. If that be proper in any case, it must be upon very satisfactory evidence that the party has been deceived or misled, or that his pleading was put in under a clear mistake as to the facts. No such proof was exhibited here as the ground of the motion, and I think leave to make such amendment was properly withheld. It follows, of course, that the defendant’s offer to show that the materials furnished were not used in the buildings, was properly rejected. This proof was not offered in support of the motion to amend, or to show that the defendant had answered under a misapprehension of the facts, but as a substantive defence. Clearly he could not urge a defence, inconsistent with his answer, in contradiction of his own oath.
The defendant further insisted that the plaintiffs, having [744]*744taken the contractor’s note for the amount of their claim, could not afterwards proceed under the statute and acquire a lien, and that the note should be regarded as payment.
I need hardly say, that giving a note of the purchaser for goods is not payment. The note of a third person is payment, if expressly received as payment; but the note of the purchaser is a mere security or evidence of the indebtedness, and of the term of credit given. If the note is not paid at maturity, the vendor may resort to the original contract, and proceed for the consideration, producing and canceling the note on the trial.
Nor can I find any reason for holding, that taking the con-' tractor’s note, deprives the laborer or material man of the benefits of the act in question, if such note be not paid. No reason was suggested by the defendant’s counsel. The debt still subsists. It is for labor or materials, as truly as if no note had been given. The defendant has not been led, by reason of the existence of the note, to place himself in any worse position than he would have been in had the matter remained a charge upon book account at the same period of credit.
Finally, the defendant insists, that the plaintiff, having given to Henry (the contractor) a credit of two months, from Dec. 3d, 1851, (the date of the note,) could not obtain a lien by filing a notice of claim with the county clerk before the term of credit expired; and that the notice of claim having in this case been filed on the 19th of January, 1852, the whole proceeding fails. I am not aware that this precise point has been before raised. In the cases above referred to, we have held, that the claimant might file his claim, though nothing was at that time due from the owner to the contractor, and so acquire a lien, which might avail to reach moneys thereafter becoming due from the owner. I incline to think the same construction should be given to the act, when applied to the debt for which the lien is sought to be created, and that so soon as the work is done or the materials are furnished, the claim may be filed and a lien secured; and yet the question is not free from difficulty.
[745]*745It is obvious that the lien cannot be enforced until the money is due. The legislature never intended that the party should, by means of the proceeding authorized by this act, collect payment for his labor, or materials, before it became payable by the terms of service or sale. If the claimant has voluntarily given credit for his goods or his labor, he must clearly wait till the credit has expired before he can compel payment.
This, also, appears from the language of the 5th section, which requires him, when he commences his action, to serve on the owner a bill of particulars of the amount claimed to be due. Suppose, then, having given a credit of three months, and filed his claim for the purpose of obtaining a lien by way of security, he receives immediate notice from the owner, requiring him to commence an action for the enforcement of his lien, as contemplated by subdivision 4, of section 11, of the act. If he receives such notice he must commence his action, or his lien is lost; and if he do commence his action, shall he be defeated because his claim has not yet become payable by the terms of his own contract ? Or shall it be said that the owner, by giving him the notice, waives the objection that the term of the credit has not expired, and by his own act is estopped to set up any such defence.
A like difficulty is suggested in the opinion in Doughty v. Devlin, as applying to a case in which the lien is created before moneys become payable from the owner, according to the terms of his agreement with the contractor.
But the sixth section of the statute in terms says, within six months after the performance of the work, &c., the notice shall be filed; i. e., as I think, at any time within six months. Without now deciding what would be the effect of a notice given by the owner, requiring him to commence his action before the term of credit has expired, it seems to me that we best accomplish the design of the legislature by holding that, if within six months after the performance of the work, &c., he files his claim, and after the term of credit has expired he commences his action, his hen may be enforced, unless the term [746]*746of credit was so long that the lien expired by the limitation which the statute has affixed to it, viz., twelve months, (section 11, subdivision 3,) or unless the steps taken by the owner, while the credit was running, have defeated it.
Such a holding disposes of the objection raised in the present case ; and if the question is raised hereafter, in a case in which the claimant has voluntarily given a credit so long that he cannot avail himself of the benefits of the statute, his failure will be the consequence of his own voluntary acts.
The difficulties' above suggested, however, confirm me in the opinion often expressed, that the foreclosure contemplated by the statute is an equitable proceeding, in which the powers of the court as, a court of equity are peculiarly involved, to mould the remedy to suit the circumstances of each case, that the beneficial purposes of the act-may be accomplished, and yet justice be done to all parties, without altering the contracts they have made among themselves.
The motion for a new trial must, therefore, be denied, with costs.
The motion for a new trial having been denied, in accordance with the foregoing decision, the°defendant appealed to the general term. The cause was argued before the full bench, and was decided in November, 1854.
Thomas S. Henry and LL. P. Townsend, for the defendant.
Wm. H. Leonard and John T. Hoffman, for the plaintiffs.
By the Court. Ingraham, First J.
This action is brought-to enforce a lien under the mechanics’ lien law. The contract was entered into before the passage of the law. The materials were furnished by the plaintiffs after its passage. Before filing the notice of lien, the plaintiff^ took from the contractor his note for the amount, payable at sixty days after date. Before the note became due, they filed the notice of lien, and after it became due and remained unpaid, they brought this [747]*747action. The reply admits the receipt of the note, that it was unpaid, and that it was in the plaintiffs’ possession, ready to he delivered up.
Judgment was rendered for the plaintiffs, and a motion made to the judge, who tried the cause, was denied. The defendant now appeals:
1st. On the ground that the act is unconstitutional, because it impairs a contract made before its passage.
This point has been repeatedly passed upon by us, and we have held, that the act did not impair or affect the contract. That its only effect was to take money due to the contractor, and with it pay a debt that was dire from such contractor, operating as an attachment of the moneys in the owner’s hands, belonging to the contractor, for the purpose of paying his creditor. The contract remains unaffected by the proceeding. (See Doughty v. Devlin, ante, p. 625 ; Kaylor v. O’Connor, ante, p. 672 ; and Sullivan v. Brewster, ante, p. 681.)
2d. That the plaintiffs should have proved the furnishing of the materials for which the action was brought, to have taken place after the day on which the act took effect. Conceding such proof to have been necessary, the defendant furnished it himself, and thereby relieved the plaintiffs from the necessity of so doing. He proved, by Henry, the contractor, the bill and receipt of the articles so furnished; and by such bill it appears that all the lumber was furnished after the 29th day of August, nearly a month later than the law took effect. No further proof was necessary.
3d. That the notice was filed before the credit on the note had expired; and as there was nothing then due, the whole proceedings were void.
By the statute, the material man is authorized to file the notice, as prescribed by the statute, and shall, thereupon, have a lien therefor, &c. There is nothing in the statute requiring the claim to be due at the time of filing the lien. The only requisite is the furnishing of materials, pursuant to the contract.
It is not necessary here to repeat what was said by Judge [748]*748Woodruff, so fully, on the motion for a new trial before him on this point. Although the question is not free from difficulty, I am disposed to concur in his view of it as stated in his opinion at special term.
It is not necessary to say what would be the effect of extending the credit beyond the time designated for bringing the action. If by giving too long credit, the creditor deprives himself of the benefit of the act, he cannot complain if the lien becomes useless. By filing the .notice, he obtains the security ; and if within the time allowed he is in a condition to enforce the payment of the debt, I see no reason why he should be deprived of it.
The judgment should be affirmed.
Ante, p. 672.