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Note to Subdivision 2.

a. Affirmative relief to defendant.-When a defendant claims affirmative relief, legal or equitable, the duty of an actor in bringing the cause to trial devolves upon him. He can only obtain the relief when the cause is brought to a trial upon his own notice or that of the plaintiff (Roy v. Thomp son, 8 How. 253). After issue joined, if a defendant seeks judgment for more than a dismissal of the complaint with costs, he must notice the cause for trial (Wilson v. Wheeler, 6 id. 49; see Potter v. Davidson, 8 Abb. 43). Defendant can have affirmative relief as against the plaintiff (Mayor of N. Y. v. Wood, 4 Abb. N. S. 332), but not against a codefendant (Mechanics' Savings Institution v. Roberts, 1 Abb. 382; and see Woodworth v. Bellows, 4 How. 24; Norbury v. Seeley, 4 How. 73; Stephens v. Hall, 2 Rob. 674; see, however, Elliot v. Pell, 1 Paige, 268).

b. A judgment must be based upon the pleadings, and affirmative relief cannot be given to the defendant, unless set up by way of counter-claim (Wright v. Delafield, 25 N. Y. 266). Thus where the complaint prayed a specific performance of a contract in regard to the sale of land and an injunction against the defendants prosecuting actions on notes given for the purchase of said lands, the defense in effect was that the defendants were not bound to complete until said notes were paid. The defense was established and held that no other judgment could be rendered than one dismissing the complaint, and a judgment giving defendant affirmative relief was reversed (id.) And see (Garvey v. Jarvis, 54 Barb. 179).

c. In an action for divorce for cruel treatment, brought by a wife against her husband, the plaintiff failed to make out a case. The defendant set up by answer and proved facts which, had he been plaintiff, would have entitled him to a divorce a mensa et thora; held, that as defendant, he was entitled to the same relief (McNamara v. McNamara, 9 Abb. 18; 2 Hilton, 547).

Note to Subdivision 3.

d. Judgment against one defendant leaving the action to proceed against the other.-A party can avail himself of this provis ion only through the medium of an order of the court; and in a case in which the court might allow judgment to be entered against one defendant and the action to proceed as to the others, it is irregular for a plaintiff, without an order for the purpose, to enter judgment against one defendant and continue the action against the others (Bacon v. Comstock, 11 How. 197; and see Buell v. Gay, 13 How. 31; Brown v. Richardson, 4 Rob. 603). And where a number of defendants are sued on a joint liability, and some defend and one fails to answer, the plaintiff is not entitled to judgment against the defendant not answering until the issue raised by the other defendants has been disposed of (Catlin v. Latson, 4 Abb. 248).

e. A several judgment may be entered wherever a several action might have been brought (Parker v. Jackson, 16 Barb. 33; Harrington v. Higham, 15 Barb. 525; Merrifield v. Cooley, 4 How. 272; Crandall v. Beach, 7 How. 271).

f. In an action for a tort against two defendants, one defendant died and the plaintiff obtained an order for continuing the action against the survivor and the representatives of the deceased. On the trial the court obliged the plaintiff to elect either to proceed against the survivor or the representatives. The plaintiff having elected the representatives, held that the surviving defendant was entitled to costs (Gardner v. Walker, 22 How. 405).

Note to Subdivision 4.

g. Dismissal of Complaint for not serving copy.-This provision applies only to the cases of several defendants, it does not apply to the case of a single defendant (Kimberly v. Parker, 34 How. 275; and see Unger v. Forty-second Street R. R. Co. 6 Rob. 545). The statute fixes the time

within which the plaintiff must serve a copy of the complaint after demand; and if he fails to serve the copy in time, it is an unreasonable neglect to proceed in the cause against the defendant who has been served with the summons; and the motion may be to dismiss the complaint, though in point of fact no complaint may have been made. If the motion is granted, the action will be dismissed (Calvin v. Bragden, 5 How. 124; Baker v. Curtiss, 7 ib. 478; and see Luce v. Trempert, 9 How. 212)..

a. If the copy complaint is not served within twenty days after demand, and is afterward tendered, the defendant is not bound to accept it (Mandeville v. Winne, 5 How. 461), where after service of notice of motion under this section to dismiss the complaint for not serving a copy within twenty days after a demand thereof, a copy was served by leaving it at the office of the defendant's attorney, and he neither refused to receive it, nor did he offer to return it, until after the lapse of fifteen days, when he returned the copy complaint with a notice that he disregarded it, on the hearing, the court granted the motion with leave to the plaintiff to serve a copy of the complaint within five days, on payment of costs (id.; see Wirtz v. Norton, 25 Wend. 699; 3 Hill, 476; 1 How. 240; 2 ib. 146; 3 ib. 64).

6. A defendant served with the summons "has no right to ask the court to dismiss the complaint, with costs, in favor of the defendants not served" (Travis v. Tobias, 7 How. 90; and see McKenzie v. Hackstaff, 2 E. D. Smith, 75; Robinson v. Frost, 14 Barb. 536).

c. A party named as a defendant in the summons, but who has not been served, can voluntarily appear and move to dismiss the complaint if he has some right to protect, which renders such appearance necessary (Waffle v. Vanderheyden, 8 Paige, 45; Georgia Lumber Co. v. Bissell, 9 Paige, 226; Tracy v. Reynolds, 7 How. 327. See ante, p. 143 c).

d. A motion for judgment for not serving a copy of the complaint must be made in the district, or a county adjoining the county in which the summons states the complaint will be filed (Johnston v. Bryan, 5 How. 355).

e. Dismissing complaint for not proceeding to trial. (See Rules 26, 27.)-Where a defendant notices the cause for trial, and omits an opportunity to move it at the circuit, he cannot afterward move for a dismissal of the complaint for the plaintiff's neglecting to proceed to trial (McCarthy v. Hancock, 6 How. 28; Miller v. King, 18 Abb. 244; Fuller v. Sweet, 9 How. 74).

f. Either party may give notice of hearing; and where both parties notice the cause, neither can charge delay or default upon the other for not bringing the cause to a hearing (Thompson v. Krider, 8 How. 248; Moeller v. Bailey, 14 id. 359; but see Bowles v. Van Horne, 11 Abb. 84). The fact that a defendant has had the cause reserved, generally does not make it his duty to keep it upon the calendar, and if the plaintiff suffers the case to go off the calendar, the defendant may move to dismiss for want of prosecution (Corbett v. Claflin, 17 Abb. 418).

9. If the plaintiff, in an action of claim and delivery, in which issue has been joined, neglects to bring the cause on for trial, the proper course for the defendant is to notice the cause himself, and bring it on. An order that the complaint be dismissed, unless the plaintiff bring the cause to trial within a specified time, is improper in such a case (Schroeder v. Kohlenback, 6 Abb. 66; Wilson v. Wheeler, 6 How. 49; but see Roy v. Thompson, 8 How. 253; 1 Duer, 636).

h. It is no sufficient answer to a motion to dismiss the complaint for want of prosecution, to say that the plaintiff is dead, that no representative can be found to revive the action, but that the attorney hopes to find a representative who is willing to revive the action (Crawford v. Whitehead, 1 Code Rep. N. S. 345); and see, as to death of one of several defendants, Chapman v. Foster, 15 How. 241.

i. Where the case is at issue as to some only of the defendants, and the plaintiff does not proceed against the others, the proper course for the de

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).

i. 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).

e. 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.

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