Maders v. Whallon — 46 N.Y. St. Rep. 217

Majority

p. 217

Sidney E. Maders, Rec’r, Resp’t, v. William I. Whallon et al., Appl’ts.

(Supreme Court, General Term, Third Department,

Filed July 2, 1892.)

Headnote

Judgment—Cannot be given fob a cause of action not presented AND LITIGATED.

Plaintiff, as receiver in supplementary proceedings, brought action to set aside a conveyance made by the judgment debtor, and filed a lis pendens as in such an action. Subsequently, and after submission of the case, he filed another Us pendens for foreclosure of a mortgage, and the' judgment rendered was for the foreclosure of a mortgage given by the grantee on the conveyance complained of. Held, error; that judgment cannot be given upon and for a cause of action not presented and not litigated, and as to which no claim was made nor issue joined.

p. 218

Appeal from judgment of special term directing a foreclosure and sale of real estate.

F. A. Rowe, for resp’t; Byron Pond (E. T. Brackett, of counsel), for appl’ts.

The issue made by the pleadings was whether a conveyance executed by the defendant, William I. Whallon and bis wife, to the defendant McAuliff, of certain real estate, was-fraudulent as to the plaintiff, as receiver of the defendant William I. Whallon, appointed in supplementary proceedings against, the said Whallon.

The judgment rendered was for the foreclosure of a mortgage given by the defendant McAuliff to the defendant Whallon at the time of the conveyance of said real estate for the purchase price thereof.

The complaint was not amended upon the trial. A lis pendens was filed of an action to set aside a conveyance as fraudulent. Subsequently, and after the case had been submitted to the court,, another hs pendens for the foreclosure of a mortgage upon the same property was filed.

It must be obvious that an action for the foreclosure of a mortgage, and one to set aside a conveyance as fraudulent, are very wide apart, are dissimilar in every respect, and that upon a trial a complaint for the one cause of action could not be so amended, as to set up the other as the cause of action to be tried.

While it is true that tbe execution of the bond and mortgage herein was alleged in the complaint, it was merely as a recital of the facts which the plaintiff claimed showed the conveyance to be without consideration and void, the bond and mortgage being, for the entire purchase price.

If under such circumstances judgment can be obtained and sustained, then pleadings serve no useful purpose; they inform neither the court nor the parties of the issues to be relied upon; instead of informing they mislead the adverse party. Defendants have a right to be informed of the claim made against them; to be informed of the issue to be tried. And after trial and submission to the court upon the issue presented judgment cannot be given upon and for a cause of action not presented and not litigated and as to which no claim was made nor issue joined. Walter v. Bennett, 16 N. Y., 250 ; Wright v. Delafield, 25 id., 266 ; Southwick v. First N. Bk. of Memphis, 84 id., 420; Truesdell v. Sarles, 104 id., 164; 5 St. Rep., 565 ; Day v. Town of New Lots, 107 id., 148; 11 St. Rep., 361 ; Romeyn v. Sickles, 108 N. Y., 650 ; 13 St. Rep., 864 ; Terry v. Hunger, 121 N. Y., 161 -171; 30 St. Rep., 746 .

Here the action was in fact tried as one to set aside a conveyance as fraudulent, and that was decided against the plaintiff, and then, two months or more after the submission of the case to the trial court, the issue was changed or attempted to be changed by filing a lis pendens for the foreclosure, of a mortgage.

The case of Durand v. Hankerson, 39 N. Y., 287 , an extreme case, does not seem to me to be controlling. The complaint in

p. 219

that case was in part a bill of discovery, alleging that the defendant had property, equitable interests, debts and securities, etc., which the plaintiff could not reach by execution, and which ought to be applied in satisfaction of the plaintiff’s judgment. Under that clause in the complaint evidence was given on the! trial that the defendant had a bond and mortgage, and the judgment directed the payment of the amount due thereon to the receiver. The complaint in the case at bar is not in any sense a bill of discovery; it seeks but one thing, presents a single issue; it has no general allegation of property in the defendant’s possession which should be applied to discharge his debts.

The judgment should be reversed and a new trial granted, costs to abide the event.

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