Opinion
June, 1895.
Hector M. Hitchings, for appellant.
E.F. Bullard, for respondent.
Section 1223 of the Code of Civil Procedure declares that "upon an application, by either party, to the court for final judgment, after the decision of an issue of law, as prescribed in the last two sections, the court has the powers specified in section 1215 of this act upon an application for judgment by the plaintiff," and section 1215 declares: "The court must thereupon render the judgment to which the plaintiff is entitled. It may, without a jury, or with a jury, if one is present in court, make a computation or assessment, or take an account, or proof of a fact, for the purpose of enabling it to render the judgment, or to carry it into effect; or it may, in its discretion, direct a reference or a writ of inquiry for either purpose."
By his default the defendant admits only the facts properly pleaded, not that the plaintiff is entitled to the relief demanded or the extent of that relief. It is for the court to determine, upon the facts, to what relief the plaintiff is entitled. Argall v. Pitts, 78 N.Y. 239; Bullard v. Sherwood, 85 id. 253; Frick v. White, 57 id. 107; United States Life Ins. Co. v. Jordan, 46 Hun, 201.
In overruling the demurrer to the complaint in this action the judge at Special Term ( 9 Misc. 324) said: "* * * having voluntarily come into equity to apply for relief, the plaintiff in this action will be deemed to have submitted herself to the invocation of the rule that he who seeks equity must do equity. * * * Accordingly, the relief which she seeks to obtain will only be extended to the plaintiff upon satisfaction of the defendant's demand under the second judgment."
And the General Term, in affirming that judgment ( 10 Misc. 398), said: "The recovery of a second judgment for the same claim gave him no lien on the property which the judgment debtor must offer to satisfy before claiming restitution. Such subsequent judgment only afforded a ground or claim for equitable consideration when the rights of the parties were submitted to the court for adjudication."
The respondent urges that the appellant ought to have paid the interlocutory costs imposed upon the decisions of the demurrer by the Special and General Terms as a condition upon which an answer might be served. We cannot see that such a course would have materially altered the situation of the parties. An answer would not have presented the issues more fully than they are now presented, or in any different form, and the appellant expresses in his affidavit a willingness to pay such costs, and in fact introduced in the proposed final judgment submitted by him a provision to that effect.
But aside from this, as the parties have submitted themselves to the equitable jurisdiction of the court, the court has the power to grant such a judgment as will fully dispose of all the issues between them involved in the matter submitted.
Having reached the conclusion that the judgment entered was erroneous in that it makes no provision for satisfying the defendant's demand under his second judgment, it follows that the judgment should be reversed and the matter remanded to the Special Term for further action, with costs.
BISCHOFF and PRYOR, JJ., concur.
Judgment reversed and matter remanded to the Special Term for further action, with costs.