Gray v. Robjohn. will," &c. This would embrace questions of the validity, as well as questions of the construction of an instrument. We will not undertake to say that, there can be no case in which an allowance can be made in virtue of these words, except when the action is brought by a trustee, though we do not recollect any case in which a bill, for the construction of an instrument, would be entertained, unless such construction was sought in aid of the performance of some duty, which it was the peculiar province of the Court of Equity to control, regulate, and enforce. If there be cases in which a plaintiff, not being a trustee, may come into Court "for an adjudication upon a will or other instrument in writing," and in which jurisdiction for that purpose will be entertained, doubtless an allowance will be proper. Under the more comprehensive terms "adjudication upon a will or written instrument," it may be that cases are embraced in which the object of the action is to obtain a judicial declaration that the will or instrument is void on its face. Such a judicial declaration is sometimes sought in equity, where the instrument is an impediment to the legal remedy of the plaintiff, e. g., a fraudulent deed or assignment impeding a levy and sale upon execution-or a deed invalid in fact, but being on record, operating as a cloud upon a title, and cases of a like character, where the relief sought is itself the judicial declaration that the instrument is invalid, and not where the relief sought is the recovery of money or other redress, and the question of construction or validity is only incidental, etc. But the legislature in using the terms "an action for an adjudication upon," did not mean an action for damages for the breach of nor an action brought merely to enforce-nor an action to restrain the breach of nor an action to compel the specific performance of-nor actions generally, founded upon written instruments.-They have used the terms in a more restricted sense. In truth, actions on bonds, bills of exchange, promissory notes, covenants, and written agreements, whether brought for damages, or in the last two examples for the specific performance, or for an injunction, involve an adjudication founded on the terms and legal effect of the written instrument, and if the doctrine contended for be sound, the prevailing party Levy v. Joyce. must have an allowance in all such actions. If this were so, the intention of the Legislature might have been, and we think would have been, much more clearly expressed. These actions are brought for a debt, or for damages, or for a specific performance, or for an injunction, and the like redress or relief, that being the object sought, and which the judgment is to award:And the prayer of the complaint, is the money—the performance—the injunction or other like relief or redress. It is this; the relief sought which determines what the action is for, and not the evidence by which the plaintiff's title to such relief is to be proved. We think that the clerk was right in refusing to insert an allowance in the costs upon the adjustment, and his adjustment must be affirmed. Order affirmed. LEVY, EXECUTOR, &c., Plaintiff and Respondent, v. JOYCE, Impleaded, Defendant and Appellant. In an action, brought by the owner of property on which each of the several defendants claim to have a lien (under the Mechanics' Lien Law), to ascertain the amount and priority of their liens upon such property, and upon a fund produced by a judicial sale thereof, and to procure a discharge of such liens, and to determine the extent of the personal liability of such owner; a defendant, whose claim was not attempted to be proved on the trial of such action, further than to prove the pendency and condition of a proper proceeding in another Court to establish it; will be permitted, even after trial and judgment, to have the case so far opened, as to enable him to establish his claim, its amount, and its relative priority, when the omission to prove it at the trial occurred under such circumstances, as make it a case of excusable neglect, provided such relief can be granted without subjecting the other parties to any loss or damage, beyond the mere delay to which they will be thereby subjected, and provided also, that the party seeking such relief shall submit to such conditions as it may be proper to impose in order to protect'fully the rights of the other parties to the action. Especially will such relief be granted, when a refusal to grant it will cause a loss to the moving party of his entire claim, and it is clear that the proceedings on his part have been conducted in good faith, and the proceedings are novel in their character, and depend for their regularity and validity upon the construction of a statute, which has not received any judicial interpretation in relation to proceedings like those in question, and the grant of such relief can be made upon Levy v. Joyce. terms, which will not present any matter to be litigated except, the existence, amount, and relative priority of the applicant's claim, and he consents, as a condition to being relieved, to pay to the other parties their just costs of the further litigation as to his claim. (Before DUER, Ch. J., and BOSWORTH, HOFFMAN, and WOODRUFF, J.J.) THIS is an appeal, by the defendant Joyce, from an order denying a motion, made by him (after trial and judgment), to open the case so far as to permit him to make proof of a claim which he omitted to prove at the trial. The nature of the controversy, and the facts and circumstances under which the order, appealed from, was made, are fully stated, in the opinion of the Court. Andrew Benedict, for certain defendants who had established their claims on the trial. John E. Burrill, for other defendants. D. D. Field, for defendant Joyce (appellant.) BY THE COURT. WOODRUFF, J.-The appellant, Joyce, one of the defendants herein, having a claim for work and materials done and furnished towards the erection of a building in the city of New York, against the person who contracted to erect such building for the owner, on the 3d of October, 1851, took the steps prescribed by statute to create a lien upon the building, and afterwards instituted the proceedings (also prescribed by statute) in the Court of Common Pleas, to bring such lien to a close, and issue was joined in such proceedings prior to October, 1852. Before the issue was brought to trial, the building itself was sold under a judgment or decree for the payment of some prior claim: And the owner of the building being at the same time pursued in this Court by the contractor, upon his original contract, this action (in the nature of a cross action,) was commenced by the owner in February, 1854, for the purpose of determining to whom the surplus of the proceeds rightfully belonged, and to settle the conflicting claims of such original owner of the building, the contractor, and the defendant Joyce, and other defendants, who also claimed to have liens under the statute, and out of such surplus proceeds the amount remaining due to the Levy v. Joyce. original contractor, was brought into this Court.. An injunction originally granted to restrain the defendant, Joyce, (the present appellant) from proceeding further in his proceedings to foreclose his lien, was in November, 1855, so modified as to permit the appellant to proceed with the trial of the issue joined in his proceeding to foreclose. The appellant being, as he states, desirous of avoiding a double litigation, omitted to proceed with his action in the Court of Common Pleas, and awaited the trial herein. In November, 1856, this action came on for trial, in the Special Term. On the trial the counsel for the appellant-under the conviction that it was sufficient for the protection of his client to show that he had taken the requisite steps, under the statute, to create a lien, and that his proceedings for the foreclosure were still pending, and supposing that the Court of Common Pleas alone had jurisdic tion to determine whether such lien was a valid, binding lien, and settle the amount thereof-gave no proof of his claim other than the condition and pendency of the proceedings in the Court of Common Pleas. The Court held, that such evidence was not sufficient to entitle him to participate in the fund in this Court then to be distributed, and gave judgment directing the distribution of the fund among the other claimants, and excluded the appellant from any share thereof. At what time this decision and judgment thereon were given does not appear by the papers before us, nor when the appellant first had notice thereof; but in April thereafter the appellant applied by petition and affidavits to the Special Term, and moved thereon that the case be so far opened that he be permitted to prove the existence of his lien, and the amount of his claim, and establish thereby his title to participate in the fund in question, with such priority as might appear by the evidence to be just and legal. This motion could only have been properly urged upon the ground of surprise or excusable neglect, since if the appellant wished to insist that there was error in the decision or judg. ment, he should, upon due exception, have appealed therefrom. The motion was denied, and he now appeals from the order denying that motion. Levy v. Joyce. In substance and effect, this was a denial of a motion for a new trial of the claim of the appellant. We think that the order was therefore an appealable order, under the Code, as amended in 1851. 349, sub. 2. By § 174 of the Code, power is given to the Court, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, to relieve a party from a judgment, order, or other proceedings taken against him through his mistake, inadvertence, surprise, or excusable neglect. There is, therefore, no want of power in the Court to grant to the appellant the relief sought by his motion. We are not willing to sanction the idea, that under any ordinary circumstances, the mere mistake of counsel in regard to the law of his case will entitle a party to relief, when he discovers what is pronounced to be the law by the decision of the Court. But on the other hand, there may be a case so novel and peculiar in its nature, in which it is so palpable that actual injustice may, and probably has been done, and where there are no other means of relief, that the Court will feel bound to relieve the party from the consequence of the inadvertence, and mistake of his counsel, although it arose from a misapprehension of the law or rules of practice, if that can be done without prejudice to the rights of the other parties; by which is meant, without any loss to them, other than such as may necessarily result from establishing what may be shown to be the rights of the party applying. It is not without some hesitation that we have been brought to the conclusion that the present is such a case; and a conviction, that the ends of justice demand that the defendant should be relieved, and that such relief may be given without any injustice to others, leads us to say that the motion should be granted upon proper terms. The judgment has not been executed, and therefore, if the other parties are not subjected to any further costs, they will not be prejudiced otherwise than by the brief delay which may be caused by the further enquiry sought. The Statute under which the appellant was proceeding, is of recent enactment. Of the proceeding itself, to foreclose the lien prescribed by the Statute, this Court clearly had no jurisdiction. |