
    Albert Day, Resp’t, v. The Town of New Lots, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 11, 1887.)
    
    1. Foreclosure of mortgage—Surplus on sale belongs to owner of EQUITY OF REDEMPTION.
    The surplus of moneys derived from a sale under foreclosure remaining after making the payments directed in the judgment, belong to the mortgagor or owner of the equity of redemption, and not to the purchaser on the foreclosure sale.
    g. Practice—Reversal of judgment—Order of when presumed to be MADE BECAUSE OF ERROR OF LAW.
    Where an order of reversal made by a general term does not state that it was made upon questions of fact, it must be assumed to have been made on questions of law only, and must if possible he sustained by some valid exception taken upon the trial.
    8. Same—Judgment—Must be rendered according to allegations and PROOFS
    The rule that judgment must he rendered in conformity with the allegations and proofs of the parties is fundamental in the administration of justice.
    4. Same—Pleadings—Answer—What only is necessary.
    A defendant is required to plead only to such causes of action as may he stated in the complaint.
    5. Same—Appeal—Adjudication must be based on the record.
    An appellate court is not at liberiy to go without the record to discover facts upon which to base an adjudication.
    6. Same—Evidence—Judgment-roll—Contents of must be proven.
    The contents of a judgment-roll are like any other fact to be proved, and cannot be the subject of presumption.
    Same—Appeal—When record evidence may be produced.
    Under certain circumstances an appellate court may perm't a record to be produced upon argument before it for the purpose of sustaining a judgment, but never to reverse one.
    8. Same—Presumptions to be indulged in support of judgment.
    In reviewing judgments rendered upon a trial before a court or referee, appellate tribunals must indulge all reasonable presumptions in support of them, and assume that they considered all the evidence in the case and came to a conclusion thereon adverse to the party appealing, when necessary, in order to support the judgment rendered.
    Appeal from a judgment of the supreme court, general term, second department, reversing a judgment in favor of the defendant entered upon the trial of the action by the court without a jury, and granting a new. trial. The facts are sufficiently stated in the opinion.
    
      D. D. Whitney, for app’lt; Matthew Hale, for resp’t.
    
      
       Reversing 36 Hun, 263.
    
   Ruger, Ch. J.

—The complaint states the following facts as the foundation of the plaintiff’s claim to recover against the defendant, viz.: That the plaintiff purchased certain lands in the town of New Lots, described in the complaint upon a foreclosure sale, for the sum of $7,600, and paid that sum, being the amount of his bid, to the referee appointed to make the sale; that said referee made the payments directed by the decree of the foreclosure to be made from such purchase money, and that there was a surplus arising from such sale over and above such payments, of $2,497.18, which was deposited by the referee with the county clerk of Kings county by order of the court; that on or about February 1, 1874, the collector of the town of New Lots received $2,197.82, of such moneys from said clerk and applied it upon a warrant held by him for the collection of an assessment for grading Atlantic avenue, ’ which was subsequently adjudged to be illegal and void; that such moneys were received by and applied to the uses of the town of New Lots. It then alleges “that $1,499 of the said sum of $2,197 82 so taken and received by the collector aforesaid belonged to and still is the property of the plaintiff, and was so taken and received without the knowledge or consent of the plaintiff and without notice to him.”

The complaint concludes by averring ' that the said defendant has wrongfully taken and received without the knowledge or consent of the plaintiff, the aforesaid sum of $1,499.93, the property of the plaintiff, and applied the sum to its own usé, and has wholly failed and neglected to pay over the same to plaintiff on demand, and asks judgment for that sum.

The answer put in issue the allegation of the plaintiff’s purchase of the property and his claim to the ownership of the sum of $1,499.93, and the allegation that the assessment upon which the amount received from the county clerk was applied was void, and admitted the other averment of the complaint. The answer also set up the statute of limitations as a defense. It was conceded on the trial that the plaintiff was the purchaser of the premises for the sum of $7,600, and the fact that the assessment for grading Atlantic avenue had been adjudged to be illegal and void was assumed without question. These admissions left the question as to the ownership of the surplus moneys the only material issue of fact presented by the pleadings. The facts that the referee had paid the amounts directed to be paid by the judgment roll, and that the sum of $2,497.18 constituted a surplus over and above such payments were established by the admissions in the pleadings, and could not therefore be made the subject of any controversy on the trial.

The defendant’s counsel, after the evidence was substantially in, moved to dismiss the complaint on the ground that the surplus moneys did not belong to plaintiff. The court reserved its decision upon this motion, and after consideration of the whole evidence determined that the plaintiff’s proof failed to make out a cause of action. It held that the complaint counted upon a cause of action to recover upon the ground of the plaintiff’s title to the moneys in dispute and that he had shown no title in or right to them, and ordered judgment for the defendant.

The plaintiff made no effort on the trial to amend his complaint, or to conform the pleadings to the proofs, or any claim or suggestion to recover upon any cause of action, except that presented by his complaint. Neither did he make any request for findings of fact, and none such were made by the court in addition to the facts referred to in the complaint, except that subsequent to his purchase the plaintiff paid to the comptroller of the state a valid assessment upon said premises for grading Atlantic avenue amounting to $1,000. No material exceptions were taken by the plaintiff until the close of the case when he presented a general exception to each of the findings of fact and conclusions of law reached by the trial court. The findings of fact were precisely in accordance with the allegations of the complaint, so far as that went, except in respect to the ownership of the surplus moneys which was found against the plaintiff’s claim. There is no claim made now that the moneys did belong to the plaintiff and the finding that the plaintiff paid the comptroller $1,000, upon a valid assessment, if it is entitled to any effect, was a favorable one to plaintiff and could not, therefore, be made the subject of a valid exception by him.

It is thus seen that the case contains but a single material exception taken by the plaintiff, and that is to the finding of law, “that the defendant is entitled to judgment dismissing the plaintiff’s complaint.” The sole question presented by this exception is whether the proof sustained the plaintiff’s claim as the owner of the surplus moneys. It was held in this court in a case, in all material respects similar to this, that such surplus moneys, belonged to the mortgagor, or the owner of the equity of redemption, and it follows, therefore, that they could not also belong to the purchaser at the mortgage sale. Horn v. Town of New Lots, 83 N. Y., 100. The judgment of the trial court, therefore, covered ah the issues in the case, was fully supported by the proof and was not subject to any legal exception.

The general term, however, upon appeal reversed the judgment and ordered a new trial. Its order of reversal does not state that it was made upon questions of fact and it must, therefore, be assumed to have been made upon questions of law only, and upon familiar rules must be sustained, if sustained it can be, by some valid exception taken upon the trial.

We have seen that there is no such exception in the case, and the judgment rendered by the trial court was, therefore, unassailable upon any legal ground. We might well close the discussion of the case at this point, but we deem it not unprofitable to refer briefly to the theory upon which the court below reversed the judgment of the trial court as shown by the opinion of the majority of the court. That court seemed to be of the opinion that the evidence showed an equitable right on the part of the plaintiff to recover the sum claimed by him, and that the trial court erred in not giving him the benefit of such right by its judgment.

The theory upon which this result is arrived at, is that the decree of forelosure required all taxes and assessments, on the premises foreclosed, to be paid out of the purchase money, and that a valid assessment for $1,499.93 thereon remained unpaid until November, 1883, when it was paid by the plaintiff to the comptroller of'the state to redeem his land from a sale thereof made to enforce the collection of such assessment. The argument, in brief, was that the defendant, by wrongfully receiving from the county clerk $2,193.82 of the purchase money realized on the sale of the premises, had taken possession of moneys which were devoted by the judgment in the foreclosure action to the payment of a valid assessment for $1,499,93, and therefore, became equitably liable to avoid circuity of action to repay to the plaintiff the sum which he had been obliged to advance to the comptroller to redeem his land. As we have seen, this cause of action was not presented by the pleadings, nor was it tried or determined by the trial court. The reversal seem to have proceeded upon questions neither presented by the pleadings nor sustained by the proofs, and in an action where the real party in interest was not represented in the litigation or bound by the adjudication. McGregor v. Buell, 3 Abb. Ct. App. Dec., 86.

In arriving at the conclusion that there was a defect of parties in the cause of action discussed by the general term, we have not omitted to consider the effect of sections 488, 498 and 499 as a waiver of such an objection. It was unnecessary in this case to raise such an objection by answer as a party can be required to plead only to the causes of action stated in the complaint. If the complaint had been amended on the trial as to embrace the cause of action upon which the judgment was reversed, the objection as to a defect of parties might be deemed to have been waived if it had not been set up by concurrence, but as it is, such a claim is untenable. The rule that judgment should be rendered in conformity with the allegations and proofs of the parties “ secundum allegata eí probala, ” is fundamental in the administration of justice. Wright v. Delafield, 25 N. Y., 266.

Any substantial departure from this role is sure to produce surprise, confusion and injustice, and this case presents no exception to such a result. To permit a recovery by the plaintiif in this action would still leave the defendant liable to an action by the true owner for the moneys illegally taken by it from the county clerk, and would compel the de fendant to repay to the plaintiif the whole sum of $1,499.93 while there are still moneys in the hands of the county clerk apparently applicable to the claim of the plaintiff, if it is maintainable at all. Even though the tax upon which the defendant claimed the right to take these moneys was void and uncollectable it was still competent for the taxpayer voluntarily to pay it, and in such event the town would be entitled to hold the moneys received.

There is no evidence that the real owner of the surplus moneys has made any objection to the application made of them by the town and no reason to suppose that he intends to contest its right to them, and as against all other persons it is, so far ás can be discovered from this case, their right to retain them. The court below have gone outside of the case to discover facts upon which to support their theory, and have adjudicated upon a case not embraced in the pleadings in the absence of the parties most interested in the disposition of the property involved and upon assumptions not only unsupported by evidence, but contrary to the admissions contained in the pleadings and the findings of the trial court. Comstock v. Ames, 3 Keyes, 357.

If it is true that the foreclosure judgment provided for the payment of liens and taxes which were not paid by the officer charged with that duty, it was essential to the proper adjudication of the questions involved that the real parties in interest should have been brought into the litigation, and that the amount of such liens and taxes should be known and what application of the purchase money had been made, for the purpose of determining by whose fault the fund had been dissipated and misapplied, and the assessment, alleged to have been paid by the plaintiff, had been allowed to more than double the amount by delay through accumulations of interest and otherwise/

From an examination of the facts stated in the respondent’s brief, and the cases of Easton, v. Pickersgill (55 N. Y., 316) and Day v. Bergen (6 Hun, 267), therein referred to, we are of the opinion that the material facts of the case are very imperfectly presented by the printed case, but we are not at liberty to go outside of the record to discover facts upon which to base an adjudication. Those facts may, however, be referred to argumentatively to show how dangerous it is for courts to adjudicate upon causes of action not stated in the pleadings or tried in the court of original jurisdiction. From the information derived from the sources referred to, we infer that the sum paid for the premises was nearly or quite sufficient to pay all liens and assessments, both valid and invalid, thereon, if it had been promptly and properly applied.

That it has not so been applied seems to have been mainly the fault of the purchaser of the premises for he was most largely interested in the question and had the power at all times, either by action or summary application to the court, to procure the appropriation of his fund to the payment of liens and the relief of this property from incumbrance, and it is not a question free from doubt whether he has not lost his right to relief, if he had any, by his own loches.

We have been unable to discover any grounds upon which the general term were authorized to assume that the foreclosure judgment contained any provisions requiring the payment of taxes and assessments by the referee. The contents of a judgment roll are like any other facts in the case to be proved, and cannot be the subject of presumption. It was competent for the court rendering the judgment in the foreclosure action to direct the land to be sold free of all liens, taxes and assessments thereon or subject thereto, or it might require them to be paid out of the proceeds of the sale under such terms and conditions as it should prescribe, and these facts could only appear, from an examination of such roll. The roll in question was neither set forth in the pleadings nor proved or produced on the trial, and it does not appear in the record of the case. We think, therefore, it was error in the court below to base a reversal of the judgment rendered by the trial court upon the, facts neither proved before nor found by it, and of which they could have had no legal information. We infer, from a statement in the brief of one of the counsel, that a certified copy of such judgment roll was produced on the argument before the general term, and it is probable that their information of its contents was derived from such copy. If such was the case it was clearly error for that court to act on information thus obtained. While there are cases authorizing an appellate tribunal, under certain circumstances, to permit a record to be produced upon the argument in the appellate court, this is allowed only for the purpose of sustaining a judgment and is never permitted for the purpose of reversing one. Stilwell v. Carpenter, 62 N. Y., 639; Porter v. Waring, 69 id., 254.

A further objection exists in the fact that such judgment roll was inadmissible under the pleadings, as it was not set forth therein and was a material fact in the view taken by the general term. The settled rule of appellate tribunals requires them, in reviewing judgments rendered upon a trial before a court or referee, to indulge all reasonable presumptions in support of the judgment of such tribunals and to assume that they considered all of the evidence in the case and came to a conclusion adverse to the appealing party thereon when it is necessary to support the judgment rendered. Hayes v. Miller, 70 N. Y., 116, Sheldon v. Sherman, 42 id., 484.

The court below seems to have reversed this rule and disregarded the findings and proofs as well as the pleadings.

As we have before seen, the pleadings established incontestibly the facts that all payments directed to be made by the judgment of foreclosure had been made by the referee, and that the sum of $2,497.18 was surplus over and beyond such payments, and the trial court found these facts in accordance with the allegations and admissions of the pleadings. These admissions and findings established conclusively the facts stated, and it would clearly be error for the general term to reverse the judgment rendered thereon upon the assumption that the referee in the foreclosure action did not make the payments which he was directed to make by the judgment, and that the sum of $2,497.18 was not surplus moneys at all, but was a fund devoted by the judgment of foreclosure to the payment of the liens upon the premises. The plaintiff could not recover upon such a cause of action except by controverting the main allegations of his complaint and showing the reverse of the facts alleged by him and admitted by the answer. We, therefore, think the general term erred in reversing the judgment of the trial court upon the grounds stated by it. We have not been unmindful of the cases holding that when an action has been tried upon its merits without regard to the pleadings, and the evidence has been received therein without objection, the court should order such a judgment as the evidence calls for and justifies, but even in such a case the judgment rendered cannot be reversed unless the questions involved are presented by some legal exception.

This, however, is not such a case, for not only was the evidence insufficient to establish the equity supposed to have existed in favor of the plaintiff, but the parties tried the case presented by the pleadings, and no other, and demanded judgment upon the allegations of the complaint, and requested no other judgment. The trial court was called upon to determine whether the cause of action set up in the complaint had been made out, and when it decided that it had not, they had acted upon and decided upon every question presented to it.

We have deemed it unnecessary to discuss the question of the effect of the statute of limitations upon the action, because the grounds before referred to are deemed a conclusive answer to the plaintiff’s claim, but we must confess that it is difficult to see how a liability incurred by the defendant in 1874, if incurred at all, and for which it was then liable to some one, can remain unprosecuted for a period of upwards of nine years without being barred by the statute.

For the reasons stated, we are of the opinion that the order of the general term should be reversed and the judgment of the trial court affirmed, with costs.

All concur.  