
    Sidney E. Maders, Rec’r, Resp’t, v. William I. Whallon et al., Impl’d, Appl’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 22, 1892.)
    
    Judgment — Cannot be given fob cause op action not pbesented and LITIGATED.
    Under a complaint which plainly states a cause of action to set aside a conveyance as fraudulent against creditors, a judgment cannot be rendered to foreclose a mortgage made on the sale so alleged to be fraudulent, no fraud in fact being proved or found by the court.
    Motion for reargument. For former opinion see 46 St. Bep., 217.
    
      Byron Pond (E. T. Brackett, of counsel), for app’lts; F. A. Rowe, for resp’t.
   Per Curiam.

—We have again examined this case and see no» reason to change our views. As suggested in our opinion pleadings are- of little use if they aré to be so construed by courts that under a complaint like the one in question, which plainly states a-cause of action to set aside a conveyance as fraudulent against creditors, a judgment can be rendered to foreclose a mortgage-made on the sale so alleged to be fraudulent, no fraud in fact-being proved or found by the court.

We think the weight of authority is against the propriety of. such a practice; As bearing on the question involved,, in, addition* to the authorities cited in our opinion, see Patterson v. Patterson, 1 Abb., N. S., 262; Degraw v. Elmore, 50 N. Y., 1; Barnes v. Quigley, 59 id., 265; Ross v. Mather, 51 id., 108; Matthews v. Cady, 61 id., 651-2; McMichael v. Kilmer, 76 id., 36.

The complaint was never amended. The only substantial issue raised in the case by the pleadings for the court to try, was as to the alleged fraud. On that issue the plaintiff was defeated and we think for that reason his complaint should have been dismissed. But, although defeated on the only issue raised by the pleadings,, plaintiff was allowed by the trial court to recover judgment for a. relief not asked for.

The impropriety of taking a judgment for a foreclosure and sale in this action is apparent. As an action to foreclose a mortgage defendant-might have desired to make another answer or to produce other evidence than he did, as to the amount due on the mortgage, its ownership or in other regards. The complaint gave defendant no notice that the action was one brought to foreclose, a mortgage and defendant was not bound to answer or produce' such evidence as he might desire to in an action for a foreclosure- and sale of mortgaged premises.

We, therefore, conclude that the motion for a reargumenfe should be denied, with costs.

Mayham, P. J., Putnam and Herrick, JJ., concur.  