Opinion of the Court, per GRAY, J. [Vol. 191. for the jurisdiction of the Marine Court and extended it in certain respects; but there was, neither expressly, nor impliedly, any reference to actions against the city. In 1883, the Marine Court received its present name of the "City Court of the City of New York." In 1897, when the Greater New York charter was enacted, (Laws 1897, chap. 378), by section 1345 thereof, the City Court and its justices were expressly continued with "the same powers and jurisdiction as are now conferred upon them by law." Section 262 of the charter gave to the Supreme Court, with which the Common. Pleas and Superior Courts had been consolidated, "exclusive jurisdiction over all actions, or special proceedings, wherein the city of New York is made a party defendant", and the section, also, provided that "all such actions shall be tried in that county wholly or partly embraced within the city of New York in which the cause of action arose, or in the county of New York, subject to the power of the court to change the place of trial" etc. At the time of the enactment of the Greater New York charter, it is clear that the jurisdiction of the City Court, as continued, was only such as had been conferred by the provisions of the Consolidation Act of 1882, and, as we have seen, that could not extend to actions. against the city; for jurisdiction of such belonged exclusively to the Supreme, Common Pleas and Superior Courts. In 1901, the charter was amended, (Laws 1901, chap. 466), and, by section 1345 of the amending act, the City Court and its justices were continued with "the same powers and jurisdiction as are now conferred upon them by law." By section 1364, the Municipal Court of the city of New York, with which the District Courts of the city had been consolidated, was expressly vested with a jurisdiction comprehending actions against the city, wherein the amount involved did not exceed $500. In consequence of this extension of jurisdiction to the Municipal Court, it became necessary to omit the provision of the Greater New York charter, which confined such jurisdiction to the Supreme Court. Therefore, section 262 of the charter of 1897, which had conferred that N. Y. Rep.] Opinion of the Court, per GRAY, J. exclusive jurisdiction, in the revision and amendment of 1901, was inserted without the clause relating to jurisdiction. That left the section to stand, simply, with the provision for the trial of actions against the city within the county of New York, or that county within the city in which the cause of action arose. Because of the omission from section 262 of the clause conferring exclusive jurisdiction upon the Supreme Court in actions against the city, the argument is made that the jurisdiction of the City Court was broadened and extended, by implication, to actions against the city. It is said that the effect of thus amending section 262 of the charter was to repeal the grant of exclusive jurisdiction to the Supreme Court, and not only that but, also, to repeal the provision of the act of 1860, which, as we have seen, had given such exclusive jurisdiction to the Supreme Court, the Court of Common Pleas and the Superior Court of the city. There is absolutely no warrant for the argument. In 1860 the Marine Court was deprived of jurisdiction in actions against the city and, so far from that jurisdiction having ever been restored by the legis lature to it, or to its successor, the City Court, the Consolidation Act of 1882 and the charter of 1897 continued such jurisdiction in the Supreme, Common Pleas and Superior Courts and, upon the consolidation of the two latter courts with the Supreme Court, in that court alone, until, in 1901, the Municipal Court was granted a limited jurisdiction. The City Court, when continued by the charter, could gain nothing in its jurisdiction by implication. Its jurisdiction was limited to such actions as were therein described. Its predecessor, the Marine Court, had but a petty jurisdiction, originally, and, when all jurisdiction was taken away by subsequent legislation and at no time re-granted, expressly, to infer from the omission from section 262, in the charter amendment of 1901, of the clause conferring exclusive jurisdiction upon the Supreme Court, a grant of equal jurisdiction to the City Court requires a highly imaginative process of reasoning. To imply a repeal of the limitation upon the jurisdiction of the City Court from the omission would be con * * * trary to public policy and to the canons of statutory construction. Moreover, we find an express provision in section 1609 of the amended charter of 1901, which enacts that "the mere omission from this act of any previous acts, or of any of the provisions thereof, including said Consolidation Act of 1882, shall not be held to be a repeal thereof." The legislative intent is quite plain, in re-enacting section 262 without the clause conferring exclusive jurisdiction upon the Supreme Court. In granting to the Municipal Court of the city the additional jurisdiction of actions against the city, it was necessary that the existing provision for exclusive jurisdiction. in the Supreme Court should be omitted. The City Court gained nothing thereby. It was left where it was, after the act of 1860 had deprived it of its limited jurisdiction in actions against the city. Such jurisdiction was never restored in any degree; but, to the contrary, was expressly negatived in the charter legislation. I advise the affirmance of the order appealed from, with costs. CULLEN, Ch. J., HAIGHT, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur. Order affirmed. UVALDE ASPHALT PAVING COMPANY, Respondent, V. THE CITY OF NEW YORK, Defendant, and JOSEPH SIGRETTO et al., Appellants. * " 1. LIENS ACTION TO FORECLOSE MECHANIC'S LIEN DISCRETIONARY POWER OF COURT TO PERMIT AMENDMENT OF PLEADING TO CONFORM TO PROOF. An action to foreclose a mechanic's lien on moneys due from a municipality to certain contractors, described to be "for cash advanced for labor and materials furnished * is equitable in its nature, and, where it appears at the trial, upon evidence offered without objection, that the contractors agreed to assign their contract to the plaintiff, if, in addition to supplying the material, the latter would make advances in money, it is within the discretionary power of the court to permit an amendment of the complaint to conform to the proof, so as to allege that the contractors agreed to give the assignment in question. 2. NOTICE OF LIEN, IN PART FOR MONEY LOANED, DEFECTIVE EQUITY - PERSONAL JUDGMENT. The amendment, however, does not operate to cure the infirmity in the notice of lien, in so far as it claimed a lien upon the fund for cash advanced, since the Lien Law gives no right to file a lien for money loaned, and a judgment decreeing a valid lien for the whole amount claimed is, therefore, erroneous as to that item although proper as to the item for material furnished. But the failure to establish a valid statutory lien as to the money advanced does not affect the plaintiff's right to recover a personal judgment against the contractors for such amount, since equity will regard that as done which ought to have been done, and the contractors having refused to perform their agreement to assign the contract, the amount due thereunder is charged with an equitable lien in favor of the plaintiff, which the court may enforce by rendering a personal judgment in its favor decreeing that measure of relief which is appropriate to it as an assignee of the contract. Uvalde A. Paving Co. v. City of New York, 113 App. Div. 916, reversed (Argued January 24, 1908; decided February 25, 1908.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 30, 1906, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion. George W. Titcomb for appellants. The learned trial court erred in allowing an amendment to the complaint radically changing the nature of the action. (Hotaling v. Marsh, 132 N. Y. 29.) The judgment appealed from is erroneous in that it gives the plaintiff a mechanic's lien, not for labor and materials, but for money loaned with which to pay for labor and materials. (Kirby v. Daly, 45 N. Y. 84.) The court erred, not only in giving a judgment for a lien, but also in giving a personal judgment. (Mowbray v. Levy, 85 App. Div. 68.) Frank P. Reilly and Charles II. Hyde for respondent. The personal money judgment against the appellants was proper. (Terwilliger v. Wheeler, 81 App. Div. 460; Koep Opinion of the Court, per GRAY, J. [Vol. 191. pel v. MacBeth, 97 App. Div. 299; Thompson v. B. H. R. Co., 111 App. Div. 358; Ringle v. W. I. Works, 149 N. Y. 439; B. & C. Co. v. Pacheteaux, 175 N. Y. 492; Valentine v. Richardt, 126 N. Y. 272; Dammert v. Osborne, 140 N. Y. 30; Hubbell v. Hendrickson, 175 N. Y. 175, 180; Bailey v. Hornthal, 154 N. Y. 648; Mowbray v. Levy, 85 App. Div. 68.) The judgment was proper. (Ringle v. W. I. Works, 149 N. Y. 442; Ostrom v. Greene, 161 N. Y. 353; Otten v. Manhattan Co., 150 N. Y. 395; Code Civ. Pro. § 1337; Fischer v. Blank, 138 N. Y. 669; Born v. Schrenkeisen, 110 N. Y. 55; Gilmour v. Concord, 183 N. Y. 342; Carl v. Mayer, 51 App. Div. 5; Smith v. City of New York, 32 Misc. Rep. 380; Morton v. Tucker, 145 N. Y. 244.) GRAY, J. In this action to foreclose a mechanic's lien the plaintiff has recovered a judgment, adjudging that it had a "valid lien on the moneys due from the city of New York to the defendants, Sigretto and Mannino", and awarding a personal judgment against them for the whole amount claimed. The notice of lien filed by the plaintiff described its claim in this way: "Cash advanced for labor and materials furnished, to wit: Asphalting the openings, (for certain sewer work in Brooklyn), supplying broken stone and cement and the agreed price and value thereof is $3,578.65". It was conceded, in effect, that of that sum $2,500 represented moneys advanced to the appellants by the plaintiff, in order that they might execute their contract with the city. The balance was due to the plaintiff for furnishing asphalt. At the trial, upon evidence, which was admitted without objection, that the appellants agreed to assign their contract to the plaintiff, if, in addition to supplying the asphalt, the latter would make advances of moneys, the court allowed an amendment of the complaint to conform to the proof "and to allege that the defendants agreed to give assignments of the contract with the city of New York". In deciding the case, the court found as a fact that the agreement had been made to assign to the plaintiff the contract and all moneys due the appel |