#### Morrison W. Evans, Resp’t, *v.*Clara S. Burton and Asa R. Burton, Appl’ts, impl’d with H. Augustus Smith.

*(Supreme Court, General Term, Fifth Department,*

*Filed October,*1886.)

1. Equity actions — Pleadings in.

Tlie plaintiff is a judgment creditor of the defendant A. R. B. By his complaint he alleges the return of an execution unsatisfied, and that at a date stated such’defendant had title to certain real property which he conveyed to defendant H. A. S., who conveyed to the defendant C. S. B., then and yet the wife of A. B. B., that these conveyances were without consideration, made pursuant to an arrangement between them, and for the purpose consummated by the conveyance; that it was so made to her as security for the payment of a sum owed her by her husband for money loaned him from her separate estate. And further, that at the time of the conveyance A. B. B. was insolvent, and that thereafter the defendant • C. S. B. paid some of his debts; that the deeds were made and received for the purpose of securing the repayment to her of said sum and for no other purpose with the intent to defraud the creditors of A. B. B., and the defendants claim G. S. B. has title to the land. The complaint demanded that the deed be declared a mortgage to secure the payment of the sum loaned by C. S. B., and that she be required to account for the rents and profits, and that the plaintiff have leave to redeem, and for such other and further or different relief as maybe just and equitable. On a motion to strike out certain por*217tions of the complaint as irrelevant, and because causes of action were improperly united, and to make the complaint more definite and certain, it was *held,*That the nature of actions for equitable relief does not permit the application of so well defined rules of statement of causes for relief as may he required in actions at law as such, hence in the former a greater latitude in the statement of facts has necessarily been allowed. The allegation of intention to defraud creditors is subordinate to the allegation of the purpose of the making of the deed, and not inconsistent with it. The fact of the insolvency of A. R. B., and the fraudulent purpose of the transaction were properly alleged as bearing upon the subject of costs.

2 Complaint — Belief not demanded in — Code Civ. Peo. , § 1207.

The statute which permits relief not within the demand of the complaint in case an answer is interposed, limits the relief to that consistent with the case made by the complaint.

Appeal from order of Erie special term denying motion to make the complaint more definite and certain, or to strike out certain portions of it.

The plaintiff is a judgment creditor of tbe defendant Asa R. Burton. By his complaint be alleges the return of execution unsatisfied, that such defendant, on 11th August, 1880, had title to certain real property, which he then conveyed to defendant Smith, who conveyed it to the defendant Clara S. Burton, then, and yet, the wife of Asa R.; that these conveyances were without consideration, made pursuant to arrangement between them, and for the purpose consummated by the conveyance to her; that it was so made to her as security in fact, for the payment of $2,500, which the husband owed her for money loaned to him from her separate estate.

And it further alleged that he was insolvent at the time of the conveyance ; that the defendant Clara S. thereafter paid some of his debts, that the deeds were made and received “for the purpose of securing to her the repayment of the said sum of $2,500, so due and owing to her from the said defendant Asa R. Burton . . and for no other purpose with the intent to hinder delay and defraud the creditors of said Asa R. Burton . . out of the payment of their debts.” and that the

appellants now claim that Clara S. has title to the land. This part of the complaint the defendants moved to be stricken out. The relief demanded by the complaint is, that the deed be declared a mortgage to secure the payment of $2,500 ; that the defendant Clara S. be required to account for rents and profits ; that the plaintiff have leave to redeem ; and that the plaintiff have “such other further or different-relief ” as may be just and requitable, etc.—

*Wm. C.*Green, for appl’ts ; *E. C. Hart*for resp’t.

Bradley, J.

The defendant’s motion is founded upon the contention, that the complaint contains the elements of two distinct causes of action mingled together, and while it alleges that the deed to the wife was made through the defendant Smith to secure the payment to her of the amount of $2,500, *218which the husband owed her, it also alleges that it was made and taken with intent to hinder, delay, and defraud his creditors ; and in support of that allegation it is charged that he was insolvent at the time the deed was made, and that she now claims to be- seized in fee of the premises. And it is insisted that unless these allegations of fraud are to serve some substantial purpose so as to‘ enable the plaintiff to seek relief at the trial on the ground of fraud, they are immaterial and should be stricken out, and that if they can be used for such purpose then they constitute a distinct cause of action, and are improperly united with the cause of action founded upon the fact that the deed to the wife was intended as a mortgage and is such in fact: and that the complaint should in that view be made more definite and certain. It may be observed that this is an action for equitable relief, and that the nature of such cases does not permit the application of so well-defined- rules of statement of causes for relief as may be required in actions at law as such. Hence, in the former a greater liberality or latitude in statement of facts and circumstances has necessarily been allowed than in the latter. And a complaint may not be deemed multifarious, and matter irrelevant so as to render a motion to strike out effectual, although it embrace facts collateral to the apparent cause for relief unless they are foreign to the cause of action. *Hawley*v. *Wolverton,*5 Paige, *522*— Town *of Essex*v. *N. Y. & C. R. R. Co.*— 8 Hun, 361. The main ground of relief is based upon the charge in the complaint that the deed was made and taken as security, and that therefore it is in legal effect a mere mortgage. And there do not seem to be any allegations in the complaint inconsistent with such alleged fact. The allegation of intent to hinder, delay and defraud the creditors is so connected with that of its purpose as between the parties to secure the debt due from the husband to the wife as to make the alleged fraud subordinate to and consistent with such alleged purpose of the deed of conveyance. And the effect of these allegations taken together is, that notwithstanding the deed was made and taken as such security, it was nevertheless done in that manner with the intent to defraud the creditors of the grantor Burton. And the subsequent assertion of title in the defendant Clara S. Burton by virtue of the deed was made with the like intent, and to consummate such result.

The facts of his pecuniary condition, and the fraudulent purpose of the transaction were not improperly alleged as bearing upon the question of costs, if for no other *reason*— Howard v. *Tiffany, 3*Sandf, 695.

The statute which permits relief not within the demand of the complaint in case an answer is interposed, limits the relief to that consistent with the case made by the complaint. Code Civ. Pro., § *1207*— Stevens v. Mayor, etc., 84 N. Y., 296.

*219And in this respect there is not much, if any, departure from the earlier practice in this State in equity cases, *Colton*v. Ross, 2 Paige 396; *Beach*v. *Beach.,*11 *id*161; *Brady*v. *M*’ Cosker, 1 N. Y. 214; *Mayor*v. *Griswold,*8 *Sandf,*464. The view here is that the defendant’s motion was properly disposed of at special term.

The order should be affirmed with ten dollars costs and disbursements of the appeal.

Smith, P.J, and Barker and Haight, JJ., concur.