
    Elizabeth Redpath, Appellant, v. William Redpath, Respondent.
    
      Conveyance of real property in consideration of a covenant to support the grantors — sufficiency of a complaint alleging a breach of the covenant — decree fixing a sum to be paid for support and making it a lien on the premises.
    
    The complaint in an action alleged that the plaintiff and her husband, the latter since deceased, conveyed certain premises to the defendant, upon the latter’s agreement to comfortably maintain, support and clothe and provide a home for the plaintiff and her husband during the term of their lives and of the survivor of them and furnish and provide suitable burial for each of them at their decease; that the conveyance contained a covenant that such care, maintenance, support and burial should be and remain, until their decease, a lien upon the premises conveyed; that the defendant entered into possession of the premises under the deed and still held the same and that the plaintiff and her husband had lived and made their home upon the premises with the defendant.
    The complaint further alleged that the defendant had wholly failed and refused to comfortably maintain, support and clothe the plaintiff and to furnish proper and necessary food for her support and prayed for the annulment of the conveyance and also for such other relief as might seem just.
    
      Reid, that a judgment dismissing the complaint upon the ground that it failed to state a cause of action should be reversed;
    That, although the averments of the complaint were probably not sufficient to warrant, a judgment setting aside the conveyance, such averments were sufficient to entitle the plaintiff to have the sum necessary for her support and maintenance fixed by the court and declared a lien upon the premises, and that, as an answer had been interposed, the plaintiff was not limited to the precise relief claimed in her complaint, but, under her prayer for further relief, might be granted any relief consistent with the case set forth in the complaint..
    
      Appeal by the plaintiff, Elizabeth Redpath, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk' of the county of Montgomery on the 25th day of January, 1902, upon the dismissal of the complaint by direction of the court upon the opening at the Montgomery Trial Term.
    The complaint in this action states, in substance, that in bTovem"ber, 1900, the plaintiff and her husband, who is since deceased, executed and delivered to. the defendant a conveyance of certain premises therein described, and such conveyance is made part of the complaint; that such conveyance was made upon the agree7 ment that the defendant should comfortably maintain, support and clothe, and provide a home for both herself and husband during the term of their lives, and of the survivor of them, and furnish and provide suitable burial for each of them at their decease; that it was also covenanted in such conveyance that such care, maintenance, support and burial should be and remain until their decease a lien upon the premises therein described; that the defendant at once entered into possession of the premises under such deed, and still holds the same, and that she and her husband lived and made their home there with such defendant. So much of the complaint is admitted by the answer.
    The complaint further avers that now the defendant has wholly failed and refuses to comfortably maintain, support and clothe her, and to provide proper and necessary food for her support. In short, ■ it avers an utter and complete breach of the contract on the defendant’s part, greatly to her injury in health and to her damage. The complaint then prays for a decree of the court vacating and setting aside the contract between them and annulling and declaring void such conveyance, and also for such other judgment and relief a,s to the court shall seem just, and for costs of the action.
    These latter averments are denied by the answer. It also sets up as an affirmative defense that the defendant has expended large sums in providing a burial place for the parties and for the burial of the husband, and has paid for repairs and improvements npon the place and assumed the payment of a mortgage thereon, and that no part of such sums have ever been repaid to him.
    The issues so made were brought to trial at a Special Term , of this court, and upon the opening of the case a motion was made by the defendant to dismiss the complaint upon the ground that it fails to state a cause of action. Such motion was granted and judgment ordered accordingly. From the judgment so entered this appeal is taken.
    
      Florence J. Sullivan, for the appellant.
    
      George O. Stewart, for the respondent.
   Pabkeb, P. J.

Although the facts averred in the complaint are, probably, not sufficient to warrant a judgment setting aside the conveyance and the agreement upon which it was based, yet there are sufficient facts stated to constitute a cause of action against the defendant. Assuming, as we must, that the defendant had ceased to furnish the requisite food, support and clothing, and refused to longer perform the contract on his part, the plaintiff would be entitled, under the covenant in the conveyance, to have a proper sum fixed by the court sufficient to furnish such support and such sum declared a lien upon the premises, and that it be enforced by a sale thereof. (Stehle v. Stehle, 39 App. Div. 440.) Such relief, at least, she is, upon the averments in her complaint, clearly entitled to, and the court had the power, and it was its duty, upon her establishing the same, to award her a judgment to that effect. An answer having been interposed, she was not limited to the precise relief claimed, but under her prayer for further relief, she was entitled to any consistent with the case set forth in the complaint. (Code, § 1207; Murtha v. Curley, 90 N. Y. 372; Bell v. Merrifield, 109 id. 202, 207.)

For this reason it was error to dismiss the complaint, and the judgment must be reversed.

All concurred.

Judgment reversed and new trial granted, costs to appellant to abide event.  