
    SIMONSON a. BLAKE.
    
      Supreme Court, Second District;
    
    
      General Term, Feb., 1861.
    Relief not demanded in the Complaint.—Judgment fob De-FIOIENOY IN FoBECLOSUBE.-MoiTON TO VACATE JUDGMENT.
    The relief granted to a plaintiff in a case in which there is no answer, cannot exceed that which is specifically demanded in the complaint. It is not enough for him to state facts entitling him to the relief; he must also ask it.
    
    A judgment entered when no answer is put in, giving the plaintiff relief which was not specifically asked hy the complaint,—e. g., a judgment in foreclosure, for deficiency where the complaint merely asked for a sale,—should he vacated on motion.
    Such a judgment is not merely irregular, hut is void or voidable as unauthorized, and the right to move to have it vacated is not limited to one year.
    Appeals from an order vacating a judgment, and from an order of reference to ascertain the amount to he paid the judgment-creditor out of a fund in court.
    The defendant Blake was a party defendant in two actions of foreclosure. In the first of these actions, which was at the suit of Daniel Simonson, the complaint alleged that Blake had assumed the payment of the mortgage sought to be foreclosed; but the demand for relief asked for foreclosure and sale, but omitted to ask a judgment over against him for any deficiency on the sale; it, however, contained the usual general prayer for relief.
    The summons alone was served on the defendant Blake, and he failed to answer or appear. The plaintiff obtained judgment and had the premises sold, and there proving to be a deficiency, obtained a judgment therefor against Blake on the referee’s report of sale.
    - Meanwhile, in the other foreclosure suit to which Blake was a party, there arose, upon the sale therein, a surplus which he claimed under a mortgage upon the premises there sold. The representatives of the plaintiff in the other judgment, since deceased, also claimed the surplus by reason of that judgment against Blake, and they obtained an order of reference to ascertain their • claim against the surplus.' Under these circumstances, and more than a year after the j udgment for deficiency in the first-mentioned action was entered, the defendant Blake moved in the former cause to set aside the judgment for the deficiency,.and also in the latter cause to set aside the order of reference.
    These motions being granted, the representatives of the • judgment-creditor, deceased, appealed.
    
      Matthew Hale, for the appellant.
    
      William H. Anthon, for the respondent,
    cited Code, § 275; Marquat a. Marquat (12 N. Y. (2 Kern), 336); 2 Rev. Stat., 5 ed., 637; Code, § 174; King a. West (10 How. Pr., .333); Rule 48.
    
      
       Compare Bullwinker a. Ryker, Ante, 811.
    
   By the Court.—Emott, J.

—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 from the fact that he assumed the payment of this mortgage in his purchase. He denies, however, that the fact is so. 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 Rev. Stat., 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 he 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 purchaser 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 himself, 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 a. 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 affirmed, with ten dollars costs of each appeal.

Order accordingly. 
      
       Present, Lott, Emott, Brown, and Schrugham, JJ.
     