
    SUPREME COURT.
    Aldrich agt. Lapham and others.
    On the foreclosure of a mortgage, where there are infant defendants, the complaint must allege the requisite facts to show what the interests of the infants in the premises are; and then such facts in all cases must be sustained by legitimate proof, because they are never admitted in cases ofinfants.
    
      Erie Special Term, December 1850.
    This is an action commenced for the purpose of foreclosing a mortgage executed by the defendant Lapham. There are other defendants, among whom are three infants; who, as the complaint states, “have, or claim to have, some interest in the mortgaged premises, or some part thereof.” No reason but this, is shown for making them parties, and it is no where stated whether such interest is paramount or subordinate to the mortgage. A guardian has been appointed and a general answer put in for the infants. The plaintiff moves on the pleadings the usual affidavits and report of a referee, for judgment. The report shows the execution of the bond and mortgage as alleged in the complaint but it shows nothing as to the rights and interests of the infant defendants in the land.
    B. H. Austin, for the Plaintiff.
    
    D. Tillinghast, for the infant Defendants.
    
   Sill, Justice.

This application must be denied. The rule applies now as heretofore, that the judgment must be “ secundum allegata et prolataThe complaint must state the facts which entitle the plaintiff to his judgment, and where they are not admitted, which as against infant defendants, is never the case, they must be sustained by legitimate proof. In the present case both these' essentials are wanting. The complaint alleges that the infant defendants have an interest in the mortgaged premises, but it does not state what that interest is, whether it is paramount to the interest mortgaged or subordinate to it. The latter must be in some form shown by the complaint to justify the judgment prayed. If the complaint were sufficient in this particular, proof to show the paramount interest and rights of the plaintiff is wanting, and on both grounds the motion must fail.

The cause must stand over, to give.the plaintiff an opportunity to move for leave to amend the complaint and if notice of such motion is not served within twenty days, the complaint must be dismissed with costs to the defendants who have appeared.  