[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 397 The liability of the defendants to account to the plaintiff, would have been established if it had been shown that the transaction between their testator and How had placed him in the same relation to the debtor which How held. The complaint alleges that the whole interest How and Swift Hurlburt had in the two promissory notes and in the securities, was duly assignable, and had fully and effectually passed to him. This allegation is not as to the notes distinctly denied by the answer, and the rule that every material allegation of the complaint not controverted by the answer must be taken as true, is invoked to establish the fact on this appeal that the notes were transferred with the securities. *Page 398
But this fact is not among those found by the court on the trial, on which the decision was founded, and to which we must be confined in determining this appeal.
The appeal to this court is upon the law, and we are not to examine what conclusions of fact might have been adduced from the pleadings or testimony, but only whether those declared as found will support the judgment rendered. (Cady v. Allen,18 N.Y., 573.)
If the plaintiff deemed this fact essential, he should have requested the court to incorporate it in the findings, and the defendants would then have had an opportunity to move to amend their answer if the failure to deny the transfer of the notes was inadvertent; and such motion would doubtless have been granted, as the defense set up, resting upon the right of How to sell the securities and upon the purchase of them from him by the defendant's testator, in good faith, was tantamount to a denial of the existence of such circumstances as would establish privity between him and Brown.
Under the facts found, it was properly held that no such privity was established, and therefore that the plaintiff was not entitled to an accounting from the defendants. The court, however, before which the action was tried, decided that the defendant's testator wrongfully converted the securities, and awarded the plaintiff damages for such conversion.
We need not consider whether the facts warranted this conclusion if we find that the nature of the action did not admit of such a judgment. This therefore is the principal question presented on this appeal.
The case stated in the complaint is such as would entitle the plaintiff to equitable relief, and such is demanded in the complaint, while the judgment was such as is only applicable to an action at law.
It is provided by section 275 of the Code, that, in an action in which an answer had been interposed, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue; and it has accordingly been held by this court in Morgnat v. Morgnat (2 Kernan, *Page 399 336), Barlow v. Scott (24 N.Y., 40), that if a complaint states facts showing a legal right in the plaintiff and its infringement by the defendant, and issue is taken upon this, a judgment in accordance with these facts may be given, although it be not such as the complaint is framed to obtain, and the relief granted be different from that demanded.
In such cases it is always apparent before trial that the issue upon which such judgment is given is one of the issues presented by the pleadings, and if either party desire its trial by a jury he should demand it, for by proceeding without objection to a trial by the court of the whole case, he waives his right to the trial by jury of any of the issues it presents. (Barlow v.Scott, 24 N.Y., 40.)
The difficulty with the case now under consideration is, that the facts upon which the judgment proceeded were not among those stated in the complaint and were not necessary to or consistent with the case made by it.
They are in effect that the securities being pledged by Brown to How were sold by him to Varnum unlawfully, and that Varnum, having no title as against Brown, wrongfully refused to surrender them to him on demand.
The complaint does not contain any such allegations, but, on the contrary, proceeds upon the assumption that the transaction between How and Varnum was lawful, and effectually passed to him all the interest which How had in the securities, with the right to hold them as against Brown until the payment of the debt which they were intended to secure.
It cannot, therefore, be successfully contended that a judgment, based upon a tortious transfer of the securities to Varnum is consistent with the case made by the complaint.
The judgment of the General Term of the Court of Common Pleas of the city and county of New York reversing that of the Special Term was correct and should be affirmed.