#### NAUGHTON et al. v. VION et al.

(Supreme Court, General Term, First Department.

December 18, 1895.)

Mortgages—Foreclosure—Validity of Judgment.

A judgment of foreclosure rendered by default is not void because the prayer of the complaint did not ask that the equity of redemption of the then owner of the fee be barred and foreclosed, where such owner purchased subsequent to the giving of the mortgage, was made a party, and *313duly served with summons, and the allegations of the complaint were sufficient to entitle plaintiff to the relief granted, but such judgment would at most be only irregular.

Appeal from special term, New York county.

Action by Annie Naughton and another, as executors, against Ann Vion and others, to redeem certain premises in the city of New York from a sale under a foreclosure of mortgage, and to set aside a judgment of foreclosure and sale. From an interlocutory judgment in favor of plaintiffs, defendant Bridget M. Dooley appeals.

Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

D. McClure, for appellant.

A. L. Brown, for respondents.

VAN BRUNT, P. J.

In February^ 1874, one James Naughton, being the owner of the premises in question, mortgaged the same to one James Dooley, to secure the payment of $3,250. After Naughton had made the mortgage, he conveyed the premises covered by the mortgage to John E. Naughton, who, in turn, conveyed them to Eliza Naughton. Dooley assigned the bond and mortgage to a man by the name of Wallace, who commenced an action to foreclose said mortgage. At this time Eliza Naughton was the owner of the fee. She was made a party defendant to the foreclosure suit, and was served with the summons, together with a notice of the object of the action. She did not appear in the action. Thereafter such proceedings were had that a judgment of foreclosure and sale wras entered, which, among other things, adjudged that the defendants and all persons claiming under them, or any or either of them, after the filing of such notice of pendency of the action, be forever barred and foreclosed. Under this judgment a sale was had, upon which the plaintiff in that action bought the property, and the defendants in this suit claim through him. Eliza Naughton, the owner of the equity of redemption at the time of the foreclosure, died in October, 1891, leaving a last will and testament, which was duly admitted to probate by the surrogate’s court of the county of New York, by which will her residuary estate was devised to her son, John E. Naughton, and her daughter, Annie Naughton, as trustees upon certain trusts. These trustees bring the present action to redeem, basing their right to such relief upon the ground that the prayer of the complaint in the foreclosure suit did not ask that the equity of redemption of Eliza Naughton should be barred and foreclosed, and that the judgment which was entered in that action, being for other relief, not prayed for in the complaint, is void so far as it cuts off the right to redeem of Mrs. Naughton. The plaintiff succeeded in the action, and, from the interlocutory judgment thereupon entered, this appeal is taken. The, complaint is in the usual form of foreclosure action, and alleges that Eliza Naughton had or claimed to have some interest in or lien upon said mortgaged premises, or some part thereof, which interest or lien, if *314any, had accrued subsequently to the lien of said mortgage. The complaint demanded judgment that the defendant James Naughton (the person who conveyed the fee to John E. Naughton) and all persons claiming under him, subsequent to the commencement of this action, might be barred and foreclosed, etc., and did not ask relief barring and foreclosing his grantees.

It is claimed, as already stated, that the judgment of foreclosure and sale barring these parties was irregular and void, upon the ground that, the parties being in default, a judgment more favorable to the plaintiffs than that demanded in the complaint could not be had. It may be true that the judgment was irregular, but it was not void; and, if it was not void, this action cannot be maintained. None of the cases cited upon the part of the respondents hold that such a judgment is void. It is true that it is held that judgment will not be permitted upon default for more than is asked for in the complaint, and, upon motion in the action in which such a judgment has been entered, such judgment will be set aside where justice requires it. But in no case has it been held that where a judgment has been entered for relief to-which the plaintiff, by his allegations, has shown himself to be entitled, the judgment is void because he did not demand such relief. It is clear that jf, after the service of the summons and notice of object of action in this suit upon the owner of the equity of redemption, the plaintiff had discovered the omission in the-prayer of his complaint, upon an ex parte application the court would have had the right to have cured the defect. And that such-right exists even after judgment seems to be established by the case of Hogan v. Hoyt, 37 N. Y. 300. In that case a decree of foreclosure was entered appointing a referee to sell. Instead of the sale being made by the referee, it was made by the sheriff. This discrepancy having been discovered upon an examination of the title by a proposed purchaser, a motion was made to amend the decree by striking out the name of the referee, and inserting that of the sheriff, by whom the sale was actually made. Such motion was granted by the special term, affirmed by the general term and by the court of appeals. In the case of Hatch v. Bank, 78 N. Y. 487, after the plaintiffs had recovered a judgment, and it was satisfied, a motion was made to vacate the judgment, which was done, and new causes of action allowed to be added, although,, by so doing, the statute of limitations was avoided. The case of Ladd v. Stevenson, 112 N. Y. 325, 19 N. E. 842, lays down the broad principles that pleadings and proceedings may be amended, entirely independent of the Code, where the furtherance of justice requires it; that it is an inherent power in the court, which it would be quite unfortunate if it did not possess to the fullest extent. The judgment in question in the case at bar, therefore, being capable of amendment, was not void, and is a bar to the maintenance of the present action.

The judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.