
    Matthew C. Kervan, Respondent, v. Myer Hellman, Appellant, Impleaded with C. Imbrie Smith and Henry Nicholsburg, Defendants.
    First Department,
    January 26, 1906.
    Complaint — broker’s action for commission — when complaint insufficient to authorize personal judgment against agent.
    In a broker’s action for commissions against a landowner and his attorney in fact, who was only authorized to take charge of and control the payment of ■ commissions, the complaint asked no personal judgment against such attorney in fact, but merely alleged that the owner made payments of a portion of the commissions to a person with whom the plaintiff had a contract to divide the commissions, and refused to pay the balance to plaintiff without the consent of such person.
    The relief asked was that the defendants pay to the plaintiff moneys found in their hands applicable to the purpose, and that if the sainé were insufficient to pay plaintiff's claim that he have .personal judgment for deficiency against the pérson with whom he had the contract to divide the commissions,- and that he have such other and further relief as may be just.
    
      Held, that.a personal judgment against said attorney .in fact was unauthorized under the complaint, as no such relief was asked. ‘
    Appeal "by the defendant, Myer Hellman,- from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on -the 31st day of January, 1905, upon the decision of the court rendered after a. trial at the Hew York Special Term, as resettled by an order entered in said clerk’s'office on the 7th day of February, 1905, and also from -the said order resettling the judgment appealed from.
    
      John A. Straley, for the appellant.
    
      Charles Blandyr for the respondent. ,
   O’Brien, P. J.:

We are of the opinion that the judgment appealed from is erroneous in so far as it awards a personal recovery against the appellant Hellman,'for the reason that the pleadings do hot justify such a‘ recovery. . . '

The complaint alleges 'that the defendant Hicholsburg was the owner of a lot of land in the city of Hew York, and on june 12, 1901, employed the plaintiff as a broker to procure a building loan for $130,000 to enable him to erect a building upon the lot; that he agreed to pay plaintiff four per cent to cover his commissions and the costs necessarily incurred in procuring the loan ; that subsequently the plaintiff, in performance of the .agreement, called upon the defendant Smith, who stated that he could procure a building loan of $125,000 upon the premises, and would do so.if Hicholsburg would accept that sum and if the plaintiff would allow him two per cent of the amount of the loan to cover Ms commissions and expenses, the plaintiff to retain the remaining two per cent net; that this proposition was finally accépted and an agreement made embodying the provisions stated, in connection with a further \ agreement that, as a matter of convenience in collecting the commissions, Smith should he constituted the agent of the plaintiff and of Hicholsburg for the purpose of receiving the entire amount of four per cent as it fell due and dividing it between the parties entitled thereto; and it was further agreed that Smith should keep the plaintiff informed of the times when the payments on account of the building loan and the commissions should be due; that the building loan was procured, and subsequently two modifications of the contract were mutually agreed upon, which need not be detailed, as they do not affect the question now under consideration.

The complaint then alleges that subsequent to these events Hicholsburg, acting under an agreement with the other parties named, “ placed the administration of the said' building loan contract and the charge and control of the payments to be made thereunder in the hands of the defendant -Myer Heilman, as trustee or attorney in fact, and that said Heilman accepted said trust and entered upon the performance thereof; ” that thereafter,, and prior to the commencement of the action, there was paid to Smith by Hicholsburg on account of commissions about $3,000, the exact amount being unknown to plaintiff, and that Smith has wholly failed and refused to pay to plaintiff his share of such cominissions or any part thereof, although due demand had been made therefor. It is then alleged upon information and belief that Smith is insolvent and has applied said moneys to his own use, and further has demanded the payment of the balance of the commissions from Hicholsburg and Heilman, claiming to be entitled thereto; that he has threatened to compel the payment thereof to him, and Hicholsburg and Heilman have threatened to comply with his demand; ” that there remains in' the hands or under the control of Hicholsburg and Heilman over $1,000 still unpaid on account of such commissions; that prior to the commencement of -the action plaintiff notified Hicholsburg and Heilman that he'revoked the authority of Smith to collect the commissions, and requested them to pay the balance thereof in their hands to plaintiff, but said defendants have refused to pay any part thereof to plaintiff without the consent of said Smith, and said Smith has refused to consent thereto, claiming that he is entitled to receive :he said balance of said commission, or some portion thereof.”

Wherefore plaintiff demands judgment against the defendants , other than Smith, that they be restrained during the pendency of-, the action from paying out any money which they now, hold or may hereafter receive, applicable to the payment of commissionsthat the defendants and. each of them account to the plaintiff for the moneys now in their hands,, or “for moneys heretofore received and disbursed by them, or either or . any of them, and also for such moneys as may hereafter come, into their hands applicable to the-'payment of the aforesaid commissions; ” that so much of said moneys be adjudged .to belong to the plaintiff as-may be sufficient to satisfy his claim for '$1,950, with interest and costs, and that the defendants - “ be directed to pay over the moneys found in their hands applicable to the purpose aforesaid to this plaintiff to the extent above indicated ;. that if the amount-of money found in the hands of the said defendants, other than the defendant Smith, be insufficient to pay and discharge the claim of the plaintiff with interest and costs, as.. aforesaid, that plaintiff have judgment against the defendant Smith for the deficiency, if any, which may exist after the application. of the aforesaid moneys to -the payment of his claims with interest- and costs, and that the said plaintiff have such other or further relief in. the premises as to the court may seem just and proper.” x

These, are all the material allegations of the complaint, and it will be searched in- vain for any expression designed or tending in any way to fix a personal liability upon Heilman beyond that which - might- arise from the fact that he had in his hands at the time of the-commencement of the action or thereafter a portion - of the fund applicable to the, payment of commissions. The theory of the com- - -plaint, so far as it related to Heilman, is that-he acted as disbursing agent of the fund, being empowered to administer the loan and having charge and control,of the payments to be made thereunder, ■ and responsible to the plaintiff only in so far as the fund might be ■ in his hands at the. time of the commencement of the action, or might be thereafter received. If at the timé of the commencement of the action he had disbursed any part of the money previously received by him,, the plaintiff in his complaint made no demand against him for restitution of that money:. The prayer for relief ' expressly'limited Heilman’s pliability to an accounting, and if the funds in his hands were insufficient to pay plaintiff’s claim, then * the complaint demanded that the deficiency should be paid by Smith only. Ho demand for the payment of such deficiency was made against Heilman. The complaint was not amended during or after the trial, and Heilman is, therefore, placed in the anomalous situation of having a personal judgment against him for $2,633.13 in ah action where no personal judgment was sought.

This is manifestly wrong. As said in Wright v. Delafield (25 N. Y. 266) : “ Parties' go to court to try the issues made by the pleadings, and courts have no right impromptu. to make new issues for them, on the trial, to their surprise or prejudice, or found judgments on grounds not put in issue and distinctly and fairly litigated.” And as said in Becker v. Krank (75 App. Div. 193): “It is a settled rule that recovery must be had, if at all, according to the allegations of the complaint.” (Day v. Town of New Lots, 107 N. Y. 148, 154 ; Truesdell v. Bourke, 145 id. 612, 617 ; Salisbury v. Howe, 87 id. 128.) Pleadings and a distinct issue are essential to our system of jurisprudence. There can be no orderly administration of justice without them; and a party will not be permitted to lull his adversary into a sense of security by a failure to demand a personal judgment against him and then, without amending his pleadings, obtain such a judgment. Section 481 of the Code of Civil Procedure guards against such practice, for it requires that a complaint must contain “ a demand of the judgment to which the plaintiff supposes himself entitled.”

1ST or is this in conflict with the recent decision of this court in Consolidated Fruit Jar Co. v. Wisner (110 App. Div. 99). That was. an action for an accounting in which the defendant by his answer practically consented to account, but did 'not ask for an affirmative judgment. Upon such accounting a balance in his favor was found to be due, and judgment was rendered for this amount, which was sustained by this court upon the ground that the action being for an accounting between two parties, a judgment was properly rendered in favor of the one to whom the balance was found to be due. But this is an exception to the general rule requiring that affirmative relief must be, demanded before it will be granted and the exception has no application to the case now before us, where the plaintiff has alleged in his complaint no fáets showing the right to a personal judgment against Heilman, and where his prayer for relief especially exempts Heilman from such judgment. ' • v -

! Theré is also grave doubt as to whether the. plaintiff upon the tidal established sufficient facts to, entitle him to a personal judgment . against Heilman, even if such judgment was warranted by his complaint; but this question need not be considered, ás the evidence upon a retrial may differ materially from that now before us. It is necessary that such retrial should be had as the court at Special Term has failed to find whether any part of the fund applicable to the payment of commissions was in the hands of Heilman at the time the. action was commericed or was thereafter received by him. For such money Heilman would be responsible, and- without a finding upon that subjectxthe rights of the plaintiff- cannot he determined.

For these reasons we are compelled to reverse the' judgment appealed' from against defendant Heilman and to direct a hew trial, with costs to the appellant to. abide the event.

Patterson, McLaughlin, Clarke and Houghton, JJ., concurred.

Judgment appealed from as against defendant Heilman reversed and new trial ordered, with costs to. appellant to abide event. ■  