Olcott v. Kohlsaat — 27 N.Y. St. Rep. 914

Majority

p. 914

Frederick P. Olcott, Receiver, etc., App’lt, v. John W. Kohlsaat, Resp’t.

(Supreme Court, General Term, First Department,

Filed December 2, 1889.)

Headnote

Judgment—Must comply with the demand oe complaint.

The action was brought to bar and foreclose defendants of all interest in a bond deposited as collateral security and to charge this defendant with, any deficiency on a sale thereof. Defendant did not answer. Veld, that as the relief demanded against the defendant was incidental to the action as one for foreclosure and sale of the bond, when that failed the right to. relief against him failed with it; and that a judgment that he was indebted to the plaintiff was not authorized, as it was not included in the demand of the complaint.

Appeal from an order vacating and setting aside so much of the judgment in this action as adjudged that the defendant, John W. Kohlsaat, is indebted to the plaintiff upon the note mentioned in the complaint in the sum of $4,000, with interest thereon from the 18th day of June, 1884, amounting in all to-the sum of $5,109.86 ; and that the interest of the said John W. Kohlsaat in the said bond be sold at public auction in the-city of New York by Seth S. Terry, who is hereby appointed

p. 915

referee for that purpose, and that the said referee give public notice of the said sale by advertising the same one week before the said sale once in two daily newspapers published in the city of New York, to wit, the “Daily Register” and the “New York Law Journal; and that after the payment of the expenses of such sale he shall apply the balance of the proceeds thereof to the payment of the said sum and interest, and that if there be any deficiency the defendant, John W. Kohlsaat, pay the same to the plaintiff, together with the costs of this action to be taxed, and that the plaintiff have judgment for such deficiency, if any. with costs as aforesaid.

Thomas G. Shearman and Everett P. Wheeler, for app’lt; Henry L. Burnett and Edward B. Whitney, for resp’t.

This portion of the judgment was vacated and set aside for the reason that it was not included in the demand contained in the. complaint, and the defendant affected by it had not answered, but made default. The demand for judgment contained in the complaint was:

“ Wherefore, the plaintiff demands judgment:

“ 1. That the defendants, Sarah J. Kohlsaat and John W. Kohlsaat, and all persons claiming under them, or either of them, be barred and foreclosed of all right, claim, equity of redemption or other interest in the said bond.

2. That the defendant, the mayor, aldermen and commonalty of the city of New York transfer the said bond upon the books of its comptroller to the plaintiff.

3. That the said bond be sold and the proceeds applied to the payment of the amount due on the said note.

4. That the defendant, the mayor, aldermen and commonalty of the city of New York pay to the plaintiff the interest which has accrued upon the said bond since the 20th day of July, 1885.

5. That if the said bond should become due before it can be sold as aforesaid, the defendant, the mayor, aldermen and commonalty of the city of New York pay to the plaintiff the amount thereof, and all interest which has accrued thereon from the 20th day of July, 1885.

6. That if there be any deficiency the defendant, John W. Kohlsaat, pay the same to the plaintiff.

And it included no further relief against this defendant than that he should be barred and foreclosed of all right, claim, equity of redemption, or other interest in the bond, and charged with any deficiency remaining after its sale. No claim was made against him for the recovery of the debt, or loan, which he had incurred, or which the bank made to him. And as he had not answered, the plaintiff could recover no other or different judgment against him in any event than that contained in this demand. Code Civ. Pro., § 1207.

All the relief which was claimed against this defendant was incidental to the action as one for the foreclosure and sale of the "bond. And when that failed, the right of the plaintiff to relief

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against this defendant necessarily failed with it. So much of the judgment as was stricken out was consequently entered without authority. Besides that, it appeared from the finding of facts in the case that this defendant had no interest whatever in the bond which the plaintiff had the right to sell under any judgment to be entered in the suit. This part of the judgment for that reason also was without authority.

Where a judgment may be irregularly entered, as this was, against the respondent, there it may be corrected by a motion made to .the court before which the trial has taken place. De Lavallelte v. Wendt, 75 N. Y., 579 ; Ladd v. Stevenson, 112 id., 326 ; 20 N. Y. State Rep., 746; Leonard v. Columbia, etc., Co., 84 N. Y., 48 ; People v. Goff, 52 id., 434; Cagger v. Lansing, 64 id., 417 ; Cole v. Tyler, 65 id., 77; Hatch v. Central Nat'l Bk., 78 id., 487; Dinsmore v. Adams, 48 How., 274 .

The order which was made was right, and it should be affirmed, with ten dollars costs, and also the disbursements.

Yak Brukt, P. J., concurs.