
    Marquat and another against Marquat and wife.
    In an action in the supreme court against husband and wife where the plaintiff in the complaint demanded judgment, that the defendants execute a mortgage upon the real estate of the wife to secure him for money alleged to have been advanced on their promise to give such security, and such further or other relief as the court should deem proper, and the plaintiff on the trial failed to prove a case entitling him to the relief specifically demanded, but proved that the husband was liable to him for the money advanced; Held, that the court might give judgment against the husband for the amount and dismiss the complaint as to the wife.
    Where the question as to what judgment should be given arises on all the facts of the case ascertained by special verdict or otherwise, without allegation of error by either party as to the same, the court at general term on an appeal from the judgment rendered at special term may reverse it and give a final judgment in the action. Per Johnson, J.
    Except in such cases where the judgment rendered at special term is reversed a new trial should be ordered. Per Johnson, J.
    Action commenced in the supreme court m March, 1851, by John and Lewis Marquat against Peter Marquat and Elizabeth his wife. The complaint alleged that the defendant, Elizabeth, was, as one of the heirs of her father, the owner in fee of an undivided one-fourth of a farm, which was described, of which he died seized ; that the defendants, either alone or in connection with one David P. Marquat, contracted with the coheirs of Elizabeth to purchase their undivided three-fourths of the farm at the price of fifteen hundred dollars, to be paid on the first of May, 1849, and the property then to be conveyed; that a short time previous to the time last mentioned the defendants applied to 'the plaintiffs to borrow three hundred dollars to enable them to complete said purchase, agreeing to secure the repayment of the same by a mortgage to the plaintiffs upon the premises; that the plaintiffs thereupon loaned to the defendants the three hundred dollars, which were paid towards the purchase price; that on the 30th April, 1849, the undivided three-fourths of the farm were conveyed to the defendants Elizabeth and David Marquat, and that David did not advance any portion of the purchase price, and subsequently his interest was conveyed to Elizabeth. The complaint further alleged that the defendants, although requested so to do, refused to secure the plaintiffs for the "three hundred dollars advanced towards the purchase price of the land, by a mortgage thereon; that the defendant, Peter, had no property in his own right, and that unless the original agreement upon which the money was loaned was carried into effect, the plaintiffs were remediless. The plaintiffs by their complaint demanded judgment that the defendants execute to the plaintiffs a mortgage upon the .premises, securing the payment of the three hundred dollars and interest, and such further or other relief as the court should deem proper.
    The defendants- answered the complaint and denied that they agreed with the plaintiffs to secure them for the sum advanced by a mortgage or any lien upon the premises, or that the plaintiffs loaned or advanced the money to the defendants on the faith of such agreement. The answer alleged that the three hundred dollars were advanced by the plaintiffs by giving their note therefor,' payable in a year, and that the same was done for and at the request of David Marquat, for whom Peter acted as agent in the negotiation. It further denied that Elizabeth ever authorized Peter to act for her or bind her estate, in reference to the three hundred dollars. There was a reply taking issue upon the allegations of the answer.
    
      The evidence was taken by consent before a referee, and the cause was heard at a special term before Mr. Justice Parker, without a jury, on the pleadings and depositions. The evidence, which was set out in the case, tended to prove that the plaintiffs advanced the money to Peter to be used, and that it was used in purchasing the land, and that he promised that its repayment should be secured by a mortgage upon the premises. The judge before whom the cause was heard decided that the plaintiffs were entitled to recover of the defendant Peter the $300 and interest, and that the complaint as to Elizabeth should be dismissed, and ordered judgment accordingly which was entered. The counsel for Peter excepted to so much of the decision and ruling as directed judgment against him, and appealed from the judgment to the supreme court at general term. The appeal was heard in the 3d district and judgment rendered reversing the judgment given at-special term and dismissing the complaint with costs. (See 7, Howard's Practice Reports, 417.) From this judgment the plaintiffs appealed to this court. The case furnished to this court contained the pleadings and depositions and the directions for and judgment rendered at special term, with a statement that the defendant Peter excepted to so much thereof as directed judgment against him, and the order for and judgment of the court at general term. There was also attached to the printed case what purported to be a “ settlement of facts,” made by the supreme court at general term on the suggestion of the counsel for the plaintiff; but this paper was merely a statement of the substance of the evidence contained in the case and was not in any way authenticated as having been made by the court.
    
      N. Hill, Jr., for the appellants.
    I. The Code allows a party to have either legal or equitable relief under the same complaint. (Voorhies’ Code, §§ 69, 275 and notes; 4 Comst. R., 600, 602.)
    
    
      II. It is not necessary that the relief claimed should be specifically designated in the complaint. (Code, § 275.)
    III. The judgment given at the trial was consistent with the case made by the complaint. (Code, § 275.)
    IV. The principal question in issue was whether plaintiffs lent the money in question to the defendants.
    V. The action was in legal effect against the defendant Peter alone, he being the only party capable of contracting.
    VI. The defendants waived the objection that the wife was improperly joined, by omitting to demur. (Code. §§ 144, 148.)
    
      J. H. Reynolds, for the respondent.
    I. There being no finding of facts or bill of exceptions, or anything in the place of one, there is nothing for this court to review. No case or bill was ever made by either party. (Livingston v. Radcliff, 3 Howard’s P. R., 417; Code, § 266, 267, 268; Sisson v. Barrett, 2 Comst., 406; Gilchrist v. Stevenson, 7 Howard’s P. R., 274.)
    II. But if the case can be heard upon the papers now before the court, it is clear that the relief granted by the justice at special term, in giving judgment in favor of the plaintiffs for $300 and interest against the defendant, Peter Marquat, was not “ consistent with the case made by the. complaint or embraced within the issue.” (Code, § 275; Lyndsay v. Lynch, 2 Sch. and Lefroy, 9, 10; Earl of Kinnarl v. Money, 3 Swanston, 208 (note); Stevens v. Gappy, 3 Russel, 171; Williams v. Shaw, ibid, 178, note (a); Stewart v. Gloab, McLean & Robinson, 721.)
    III. By the Code, § 129, civil actions are practically divided into two kinds, and they are to be commenced by different forms of summons.
    IV. The prayer for general relief does not enlarge the right to judgment beyond what is consistent with the case made by the complaint, neither under the practice in chancery, nor by the provisions of the Code. (Dart v. Palmer, 1 Barb. Ch., 93; Colton v. Ross, 2 Paige, 396.)
    V. Before the Code, no authority can be found sanctioning such a judgment, as was given in this case at special term, and the practice has not been changed by the Code, but is affirmed by express language or necessary implication.
   Johnson, J.

A question was raised by the respondent which it is necessary to consider before proceeding to the merit's of the case. He objects that the cause ought not to be heard in this court, because no bill of exceptions is contained in the papers. Assuming the fact to be as stated, the appellants are not in fault. They succeeded at the trial, and consequently had no occasion to make any bill of exceptions. The respondent here was the appealing party below, and if a bill of exceptions was necessary he should have made it. The apparent difficulty upon the record proceeds from the fact that the general term of the supreme court, instead of ordering a new trial on reversing the judgment at special term, rendered judgment for the defendant by dismissing the complaint. The party who was successful at the trial cannot in this way be deprived of the power of reviewing the decision of the general term. In the case of Astor v. L'Amourcux (4 Seld., 107), a judgment of the" superior court was reversed solely upon the ground, that judgment final had beeai given at general term against the party, who had succeeded at the trial, when upon the case presented a new trial, at most, ought to have been granted. When the facts are ascertained upon the trial, either by special verdict or any other form of.finding allowed by law, the general question which party is entitled to judgment arises upon appeal, and in such cases a judgment disposing of the whole cause may be given at general term, notwithstanding such judgment be adverse to that given at the special term. But when the case is brought for review to the general term upon an allegation of error in the trial—in the process of ascertaining the facts—the only judgment which can properly be given for the appellant is one ordering a new trial.

In this case, however, the question of law which formed the ground of the decision at general term is one which would necessarily arise upon another trial, and which, therefore, it is proper to examine here. For if we should be of opinion that the judge at special term .was right in his views of the law, the case can be finally disposed of by affirming the judgment at special term.

The Code 275) provides that if the defendant has answered, the court may grant the plaintiffs any relief consistent with the case made by the complaint and embraced within the issue. In case no answer has been put in, the relief granted cannot exceed that demanded in the complaint. In the former case the demand of relief in the complaint becomes immaterial. The case made by the complaint and the limits of the issue alone determine the extent of the power of the court. These expressions of the statute include the statement of the right of the plaintiffs and its infringement by the defendants. These constitute the case. The addition to these material facts of others, which neither show a right in the plaintiffs, nor a wrong thereto on the part of the defendants, do not add to or alter the legal case contained in the complaint. They may render the pleading inartistic, and perhaps subject the party to an order under § 160 striking out the irrelevant or redundanimatter; or, if by means of them the pleading is so indefinite and uncertain that'the precise nature of the charge is not apparent, to the necessity of amendment, but they do not limit his right to give evidence upon the trial, nor impose upon the court any restraint as to the nature or extent of the relief to be given. In the case before us, the court at the trial, and in this the general term concurs, regarded all that part of the complaint, which states the project of the defendants to buy out the interest of them coheirs in certain lands there described, and the promise that the plaintiffs should have a lien upon the land for the money, as showing no right in them. The judge at special term, having arrived at this conclusion, looked at the other parts of the complaint to see if any where the plaintiffs had stated facts upon which a legal right in them was sustained. The general term have thought themselves not at liberty to do so. The judge at special term was right in the view he entertained. Those matters in the complaint which did not tend to show a right in the plaintiffs were surplusage, to be disregarded if there were other facts which made out a cause of action. Such facts existed, for the complaint shoxved a loan of money remaining due and unpaid, and these alone constituted the case made by the complaint, for upon these alone the law pronounces that a right existed in the plaintiffs. The only principle involved is, that a good cause of action is not destroyed by adding allegations of immaterial matter. This is no new principle in the law, and does not owe its existence to the Code. (Webber v. Shearman, 3 Hill, 551.)

The only other matter necessary to be noticed arises upon the fact that the wife was sued with her husband; and the question is whether, as she by reason of her coverture was not liable, the plaintiffs must be turned round to a new suit against the husband alone. The case of Brumskill v. James (1 Kern., 294) holds that this objection is unavailing.

The judgment of the supreme court at general term should be reversed, and that given at the special term affirmed.

Hand,J., delivered an opinion in favor of the same judgment.

All the judges concurred in the result of the opinions delivered  