Simonson agt. Blake. In pursuance of this judgment the premises were sold, and the referee reported a deficiency of $143.71, and that the defendant Blake was personally liable to pay it. Upon this report the plaintiff's attorney, on the 23d day of June, 1857, applied to the court and obtained an order for judgment against Blake for this deficiency. In June, 1860, the defendant Blake moved to vacate this judgment for deficiency, on the ground that it was not authorized by the pleadings or proceedings in the action, and upon that motion an order was made, from which the administrator of Daniel Simonson appeals. The second case. At the time when Simonson obtained the above mentioned judgment for deficiency against Blake, Mr. Blake was the owner of certain other premises, which were subsequently conveyed by him to John R. Gibson, one of the defendants in the second action. These premises were subject to a mortgage to John A. Fountain, the plaintiff in the second action, who foreclosed, making Blake a party as the holder of a mortgage executed to him by Gib son, for a portion of the consideration money on the sale to him, and making Simonson's administrators a party on account of the judgment against Blake. Upon the foreclosure of the Fountain mortgage there was a surplus, and Simonson's administrator obtained an order of reference as to the same, upon his claim, by virtue of the judgment. Blake also claims under his mortgage, and as the question of the validity of the judgment was considered to be one which could not properly come before the referee, obtained an order to show cause why the order of reference should not be set aside on account of the invalidity of the judgment, on which it was based, accompanied by a stay. Accordingly, when the order in the first action was granted, vacating the judgment, it necessarily followed that an order must be made in the second setting aside Simonson agt. Blake. the order of reference; and this is the second order appealed from. M. HALE, for appellant. WM. HENRY ANTHON, for respondent Blake. 1. No greater relief can be granted than is prayed for in the complaint, in cases of judgment on failure to answer. (Code, §275; Marquat agt. Marquat, 2 Kern., 341. JOHNSON, J.) 2. The judgment of foreclosure and sale did not authorize a personal judgment for the deficiency; it was a judg ment in rem, merely, according to the prayer of the complaint. 3. The pretended order for judgment on report of deficiency is nothing more than an office copy of a proposed order. It is not a judgment in any sense; and if it was is entirely unauthorized by the judgment of foreclosure. 4. The motion being to set aside the judgment as unauthorized does not come within the provisions of the statute in regard to irregularities. "No judgment in any court of record shall be set aside for irregularity, on motion, unless such motion be made within one year after the time such judgment was rendered." (3 R. S., 5th ed., 637; Code, § 174.) No such judgment was ever "rendered," and it was improperly entered by the clerk. 5. The appellant having no judgment, nor claim of any kind upon the premises, was not entitled to the order of reference, which was properly vacated. (Rule 48; King agt. West, 10 How. Pr. R., 333.) By the court, EMOTT, Justice. The judgment against the defendant Blake, was set aside at the special term, because it was entered upon a report of sale in an action in which no such judgment or relief was demanded in the complaint, and in which Blake had not appeared. Blake is not the mortgagor, but his grantee, and his liability is said to arise So. Simonson agt. Blake. from the fact that he assumed the payment of this mortgage in his purchase. He denies, however, that the fact is The complaint in the foreclosure suit alleges such to be the fact, but asks for no relief against Blake in consequence, other than the foreclosure of his estate and interest in the premises. The plaintiff's counsel supposes that his judgment is justified by the 204th section of the 6th article of chapter one, part three, of the Revised Statutes. (2 R. S. 191.) That section and the 202d section which refers to decrees against the mortgagor for a deficiency in similar cases, no doubt regulate as well as confer the jurisdiction of a court of equity to render judgment for the payment of money against any of the. parties to a foreclosure, when the sale does not satisfy the mortgage without sending them to proceed at law, and it is true that this judgment cannot be rendered, as the amount cannot be ascertained until the sale has been made and confirmed, and the deficiency ascertained. But this is not inconsistent with the provisions of section 275 of the Code. The rule established by that section. applies to all cases. The relief granted to a plaintiff in a case in which there is no answer, cannot exceed that which he demands in his complaint. It is not sufficient that he states facts sufficient to entitle him to the relief, he must also ask for it. The effect of this rule in cases like the present is that the complaint must ask for a judgment for the deficiency, if any shall exist after the sale, against a purchase of the land or an assignor or guarantor of the mortgage, who may be liable for the debt, in order to authorize the court to render such a judgment. The rule is manifestly just. In the present case this defendant has been adjudged to pay what the mortgaged premises failed to satisfy of the mortgage, not only without any notice that he was to be held to such a liability, and that he should therefore attend the sale and protect him. Malan agt. Simpson. self, but without any opportunity to be heard upon the question of his liability, or any notice that he was sued upon it. Such a practice or course of proceeding is unjust and oppressive, and is not to be favored. The objection to this judgment is not to its irregularity, but that it is altogether unauthorized, and void or voidable for want of authority in the court to render it. This is an objection which is not cut off by the statute after a year, but may be heard at any time. The order setting aside the judgment was correct for the reasons now indicated and should be affirmed. The order of reference in Fountain agt. Gibson, might perhaps have been allowed to stand, if proceedings under it were stayed until the determination of the question as to the validity of this judgment. As, however, we are of opinion that this is invalid, an order of reference based upon it would be of no service. Indeed there was no objection to vacating it, after the special term had made a similar decision. Both orders must be affirined, with ten dollars costs of each appeal. SUPREME COURT. JANE MALAN agt. WILSON SIMPSON and ROBERT SIMPSON. A term fee of $10, can be taxed for every term that a motion for a new trial on a case, is on the special term calendar, and not necessarily reached or postponed. (Agreeing with, and following the case of Moore agt. Cockroft, 9 How., 479.) New York Special Term, February, 1861. IRWIN S. SPINK, for plaintiff. D. G. CROSBY, for defendants. BARNARD, Justice. The question presented for consider ation is, whether a term fee of ten dollars can be taxed for Malan agt. Simpson. every term that a motion for a new trial on a case is on the special term calendar and not necessarily reached or postponed. In the case of the Mechanics' Banking Association, (10 How., 400,) the general term of the superior court decided the question in the affirmative, and even went to the length of holding that a trial fee was taxable. In the case of Moore agt. Cockroft, 9 How., 479,) the general term of the supreme court, (second district,) also decided the question in the affirmative, but held that a trial fee could not be taxed. These two cases agree in holding that term fees are taxable. There are in addition, numerous special term decisions holding the same doctrine. It is insisted on the part of the defendants' counsel, that the case of Jackett agt. Judd, (18 How., 388,) has overruled all previous decisions on this question, including the above two general term decisions. That case, it is true, is a decision directly adverse to the taxation of the term fees in question. It is, however, a mistake to suppose that the last decision on the point overruled all prior decisions. A special term decision cannot even overrule a prior special term decision, much less a general term decision. When there are several conflicting special term decisions, the point is left in doubt; but the moment a point is decided by a general term, the doubt is removed, until a subsequent conflicting decision of another general term brings it back again. As the judiciary is at present formed, all the judges are co-ordinate in power, and the decision of one single judge in one district in no way binds another in any of the other districts (excepting in adjudicating on the same case,) so likewise the general terms are all co-ordinate, and the decision of one general term, in one district is not binding on another general term in any of the other districts, with the single exception above mentioned. The decision of a general term, however, is binding on all the single judges, and all special terms, until some other general term makes |