fendants as to whom the cause is at issue to pursue, is to move to dismiss the complaint as to them, they cannot regularly bring the cause on for trial and when called take a dismissal of the complaint (Morris v. Crawford, 16 Abb. 124). If a plaintiff fail to prosecute his action against several defendants, one of such defendants may, in a proper case, move to have the complaint dismissed as to him, leaving the action to proceed against the others (Ward v. Dewey, 12 How. 193; Bishop v. Morgan, 1 Code Rep. N. S. 340; Hoyt v. Loomis, 1 Code Rep. 128; Saltus v. Pruyn, 15 Abb. 224).

a. When in granting an order dismissing the complaint for plaintiff's neglect to proceed, leave is reserved to him to bring the cause to trial on payment of costs, the costs should include all the costs to which the defendant is entitled up to that time (Bowles v. Van Horne, 11 Abb. 84).

b. A dismissal of the complaint, on motion at special term, for want of prosecution of the action, is a judgment in favor of the defendant (Tillspaugh v. Dick, 8 How. 33). It is equivalent to a nonsuit (Holmes v. Slocum, 6 How. 218; Harrison v. Wood, 2 Duer, 50; and see Robins v. Wells, 26 How. 15).

c. Pending a stay of plaintiff's proceedings until payment of the costs of a former action no motion to dismiss for want of prosecution can be made (Unger v. Forty-second Street, R. R. Co. 30 How. 443; 4 Rob. 682).

Note to Subdivision 5.

d. Judgment against married woman.—In all cases of judgment to charge the estate of a married woman it should be expressly stated therein that the amount is "to be levied or collected out of her separate estate and not otherwise," and the execution should follow the judgment in its terms (Baldwin v. Kimmel, 16 Abb. 353; 1 Rob. 109; and see Laws 1853, p. 1057, ante, p. 189 a). In the cases where a married woman sues or is sued, under the statutes, as a feme sole, a judgment against her follows the ordinary form.

$275. The relief to be awarded to the plaintiff.

(1.) The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but,

(2.) In any other case, the court may grant him any relief consistent with the case made by the complaint, and embraced within the issue.

e. Judgment where no answer.—Where a complaint asks for specific relief, and the defendant makes no defense, the plaintiff cannot take judgment for a greater amount than is asked for in the complaint (Hurd v. Leavenworth, 1 Code Rep. N. S. 278). The plaintiff in the complaint asked to have notes to the amount of $5,000 delivered up and canceled, and to have a judgment for $2,000,-held, that a judgment for $7,000 exceeded the relief sought in the complaint; and the judgment was reversed (ib.) It is not enough that the complaint states facts entitling the plaintiff to certain relief, he cannot, in the absence of an answer, have any relief not demanded (Simonson v. Blake, 12 Abb. 331; 20 How. 484). Thus where in a foreclosure the complaint only prays for a sale, the plaintiff cannot, in the absence of an answer, take a judgment for payment of any deficiency (id.)

f. A judgment giving plaintiff relief not demanded in the complaint is not merely irregular but voidable as unauthorized, and the right to move to vacate it is not limited to one year (Simonson v. Blake, 12 Abb, 331; 20 How. 484).

¿. Judgment where answer interposed.-If the defendant answers, "the demand of relief becomes immaterial" (Marquat v. Marquat, 12 N. Y. 341; Emery v. Pease, 20 N. Y. 62). Where there is an answer the court

is to give such relief as the parties are entitled to, whether demanded in the complaint or not (Jones v. Butler, 20 How. 189), provided the relief is limited to such as is proper in reference to the parties before the court (Smith v. Howard, 20 How. 151); and is consistent with the case made by the complaint and embraced within the issue (Cowenhoven v. City of Brooklyn, 38 Barb. 9). And provided an action is the proper remedy; thus where the complaint asked for damages for keeping plaintiff out of office, and to have the certificate of defendant's election declared void, the complaint was dismissed because the plaintiff should have proceeded by quo warranto (Hart v. Harvey, 21 How. 382).

a. The intent of this provision (subd. 2) was to relieve "a plaintiff from any technical objection that he has not prayed for the precise relief for which on the trial it may seem, he is entitled, but the relief to be granted must still be consistent with the case made by the complaint" (Bradley v. Aldrich, 40 N. Y. 510). It is not error to allow a "plaintiff any judgment to which, upon the allegations and proof, he is entitled, either at law or in equity (Armitage v. Pulver, 5 Trans. App. 188; 37 N. Y. 494). The foregoing appears to give the true construction to the second subdivision of this section. The decisions which hold that if a party brings an equitable action he must maintain his action upon equitable grounds or fail, even though he may on the trial prove a good cause of action (Mann v. Fairchild, 2 Keyes, 106; Rome &c. B'k v. Eames, 1 Keyes, 588; Haywood v. City of Buffalo, 14 N. Y. 540), are not inconsistent with the rule laid down in Armitage v. Pulver. In Mann v. Fairchild, B’k of Rome v. Eames, and Haywood v. City of Buffalo, supra; as also in the case of Bradley v. Aldrich, 40 N. Y. 504. It will be seen upon examination that the true ground for deciding adversely to the plaintiff, was that the relief to which on the trial he showed himself entitled, was "not consistent with the case made by the complaint and embraced within the issue" (see Weatherby v. Wood, 29 How 404; Beach v. Cooke, 28 N. Y. 508). Where the complaint unites legal and equitable causes of action, if the evidence sustains either, judgment should be rendered accordingly, whether the action be tried at circuit or special term (N. Y. Ice Co. v. N. West. Ins. Co. 23 N. Y. 357). Thus where the complaint prays the reformation of a contract and damages for its breach, and the court finds the plaintiff not entitled to have the reformation of the contract, but entitled to damages for the breach of the contract, the plaintiff should have judgment for the damages proved (N. Y. Ice Co. v. N. West. Ins. Co. 23 N. Y. 357; Bidwell v. Astor Mut. Ins. Co. 16 N. Y. 263).

b. A case for specific performance and in default, compensation in damages is consistent with relief in damages merely (Scott v. Barlow, 24 N. Y. 40; Greason v. Keteltas, 17 N. Y. 491; and see Marquat v. Marquat, 12 N. Y. 336). A case for relief from a purchase on the ground of fraud is not consistent with relief in damages for deceit (Bradley v. Aldrich, 40 N. Y. 504). In a creditors, bill to compel the application of choses in action, &c., to the payment of a judgment against A., it was charged that A. had made a fraudulent conveyance of a farm to a defendant H., and the deed was asked to be set aside; on the trial it appeared that the deed was made in good faith, but that H. gave A. a mortgage on said farm which was unpaid,-held, the court might decree payment of such mortgage to satisfy said judgment (Durand v. Hankerson, 39 N. Y. 287). Where a complaint claims the benefit of a trust deed, treating it as valid, relief cannot be given on the ground that the deed is void (Rome &c. B'k v. Eames, 1 Keyes, 588).

c. A complaint, without averring that the parties had stated an account, set forth a state of facts showing that the plaintiff was entitled to an accounting, and tending to show an account stated. It demanded judgment for a sum certain as an ascertained balance,-held that the complaint should not be dismissed, but that the action should proceed as if the plaintiff had prayed an accounting and judgment for the amount which should thereupon be found due (Emery v. Pease, 20 N. Y. 62). It is sufficient if facts be stated in the complaint which warrant the judgment, although the grounds upon which

the jugdment was rendered were other than those evidently contemplated by the pleader (Wright v. Hooker, 10 N. Y. 51). If the facts stated in the complaint give a right of action, the plaintiff may recover; no difficulty can arise as to the form of action whether in case or on contract (Scott v. Pilkington, 15 Abb. 280). See in note to § 140.

a. Where the complaint charged a conversion of money and claimed damages, and the evidence failed to show a conversion, but showed a receipt of money to plaintiff's use, held plaintiff was entitled to recover the amount of money so received (Gordon v. Hostetter, 4 Abb. N. S. 263). On a complaint for forcible entry on plaintiff's land and carrying away his goods, the plaintiff may have judgment for goods converted without force (Colton v. Jones, 7 Rob. 164; and see Eldridge v. Adams, 54 Barb. 417).

b. Where the complaint alleges fraudulent representations of defendant, by which plaintiff was induced to pay him money, and which is sought to be recovered, plaintiff may recover as for money received to his use without any proof of fraud (Byxbie v. Wood, 24 N. Y. 607).

c. Where plaintiff fails to prove the cause of action alleged in the complaint in its entire scope and meaning, but proves a cause of action different from that alleged, he is not entitled to any judgment (Saltus v. Genin, 3 Bosw. 250; and see Redmond v. Dana, 3 Bosw. 615; Bailey v. Ryder, 10 N. Y. 363; Boardman v. Davidson, 7 Abb. N. S. 439).

d. In an action for specific performance, the court has power, where the defendant cannot make title to all the property, to decree performance as to so much as he may be able to make title to; but (for the reasons stated in the report) it is a power which should "be exercised with great deliberation and caution." It may be decreed, although not asked for by the complaint, but it must be asked for at the trial; and if not demanded there, it cannot be decreed on appeal (Mills v. Van Voorhies, 10 Abb. 160).

e. Where the complaint alleges a partnership and asks for an accounting, if the plaintiff fails to establish the partnership he cannot have an accounting (Salter v. Ham, 31 N. Y. 321; but see Emery v. Pierce, 20 N. Y. 62). In an action for relief from a usurious contract, the complaint is not to be dismissed at the trial because it does not contain an offer to pay what is equitably due, out the plaintiff may have judgment conditional on his paying what is equitably due (Beecher v. Ackerman, 1 Abb. N. S. 141; and see Beach v. Cooke, 28 N. Y. 508). If a complaint contains allegations, which, under any reasonable view of them, constitute a cause of action, although informal, it should not be dismissed (Simmons v. Eldridge, 29 How. 309).

f Where the action is to obtain legal relief only, the recovery of money, and the plaintiff on the trial fails to establish a right to recover on legal grounds, he cannot have equitable relief (Towle v. Jones, 19 Abb. 449). Under a complaint framed to set aside an assignment on the ground of fraud, the plaintiff failing to obtain that relief cannot have a judgment settling the construction of the instrument (Hotop v. Neidig, 17 Abb. 332).

g. Where a complaint was inartificially framed, but contained a prayer for general relief, and the facts showed it was a case for an accounting, an accounting was adjudged upon the prayer for general relief (Wood v. Brown, 34 N. Y. 337).

$276. Rate of damages.

Whenever damages are recoverable, the plaintiff may claim and recover, if he show himself entitled thereto, any rate of damages which he might have heretofore recovered for the same cause of action.

See note to § 261.

$277. Judgment in action for recovery of personal property.

In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or for the recovery of possession or the value thereof, in case a delivery can not be had, and of damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same.

a. Judgment.- A defendant who succeeds in an action to recover the possession of personal property, when the property has been delivered to the plaintiff, must, under this section, take judgment in the alternative, for a return of the property, or for the value thereof as assessed, in case a return cannot be had; this section having deprived the defendants in such actions, of the election given them by the revised statutes, to take judgment either for a return or for the value of the property at their option (Dwight v. Enos, 9 N. Y. 470). Where the judgment was not in the alternative, held that a new trial was not necessary; but the judgment might be modified so as to conform to the code by changing it into a judgment in the alternative, for the recovery of the possession of the property, or of its value in case a delivery cannot be had, assuming the amount recovered as damages to be the true value of the property to the plaintiffs (Fitzhugh v. Wiman, 9 N. Y. 559; Seaman v. Luce, 23 Barb. 240; and see Wood v. Orser, 25 N. Y. 348; Glann v. Younglove, 27 Barb. 480). A judgment not in the alternative is valid until reversed or amended (Gallarati v. Orser, 4 Bosw. 94).

b. Where the relief demanded by the complaint was a judgment for the return of personal property or its value, and no answer was put in, it was held that the plaintiff might elect which judgment he would take, but that he could not take judgment in the alternative (Commercial B’k v. White, 3 How. 292. See Aldrich v. Thiel, 3 Code Rep 91).

c. Damages.-In an action to recover possession of personal property, or the value thereof, &c., and for damages, plaintiff may recover damages for the depreciation of the goods during the detention, although the complaint contains no allegation of special damage (Young v. Willett, 8 Bosw 486).

d. In such an action, the jury, on finding for the plaintiff, should assess the value of the property as well as the damages (Gallarati v. Orser, 27 N. Y. 326), although the plaintiff has obtained a delivery of the property pending the action (Tray v. N. Y. and Harlem R. R. 9 Bosw. 396). The value at the time of the trial is the real subject of the inquiry and the proper subject of proof. Such value is the substitute for the property if not delivered (Brewster v. Silliman, 38 N. Y. 423). Damages for the loss of use or depreciation are compensated by the damages for the detention (id.)

See note to § 261.

§ 278. (Am'd 1849, 1851, 1852.) Judgment, how directed.

Judgment upon an issue of law, or of fact, or upon confession, or upon failure to answer (except where the clerk is authorized to enter the same by the first subdivision of § 246, and by § 384, and except where it may be given at the general term as provided

in § 265), shall in the first instance be entered upon the direction of a single judge, or report of referees, subject to review at the general term, on the demand of either party, as herein provided.

a. A judgment upon a written offer, pursuant to § 385, is not within this section, and may be entered without the previous permission of a judge (Hill v. Northrop, 9 How. 525).

b. Where there is an issue of law and an issue of fact, no judgment can be entered until both issues are disposed of (Masters v. Barnard, 6 How. 133; Belknap v. McIntyre, 2 Abb. 366). Where an answer sets up more than one defense, and one of them is held bad on demurrer, an absolute judgment for the plaintiff on the demurrer is improper (Belknap v. McIntyre, 2 Abb. 366).

c. Where the decision at the circuit is correct, but the judgment is erroneously entered, the remedy of the party is not by appeal from the judgment, but by motion at special term to correct the error (Campbell v. Adams. 38 Barb. 132).

d. The court have not the power to order judgment nunc pro tunc, as of a date prior to the actual judgment, to affect the parties' rights to costs (Moore v. Westervelt, 14 How. 279). As to allowing judgment to be entered nunc pro tunc after the death of a party (Crawford v. Wilson, 4 Barb. 505).

e. After a verdict upon issues settled, it is immaterial whether the subsequent proceedings to obtain judgment is at the circuit or special term (Dort v. McAdam, 27 Barb. 187).

f. Where an order granting a favor to a plaintiff, imposed on him the payment of costs, and provided that if the costs were not paid within twenty days after adjustment, the defendant might enter a judgment of nonsuit, held that, on proof to the clerk of the nonpayment of these costs, he might enter a judgment of nonsuit without any further order of the court (Hanna v. Dexter, 15 Abb. 136).

g. In an action on an official bond, the judgment should not be for the penalty, but only for the amount of damages and costs (O'Connor v. Suh, 9 Bosw. 318; Howard v. Farley, 18 Abb. 260; but see West. B'k v. Sherwood, 29 Barb. 383).

h. A judgment in an action by an executor as such, dismissing the complaint with costs, without any direction that the plaintiff should pay the costs personally, can be collected only of the assets in plaintiff's hands as executor (Dodge v. Crandall, 30 N. Y. 294; and see B'k of Cooperstown v. Corlies, 1 Abb. N. S. 412; Mills v. Thursby, 12 How. 390; see post § 317, note).

i. Where defendant has appeared, plaintiff cannot settle ex parte the form of the judgment, if it grant special relief (3 Sand. 724).

See note to § 347.

$279. Clerk to keep a judgment-book.

The clerk shall keep, among the records of the court, a book for the entry of judgments, to be called the "judgment-book."

§ 280. Judgment to be entered in judgment-book.

The judgment shall be entered in the judgment-book, and shall specify clearly the relief granted, or other determination of the action.