The question presented by this appeal is whether, when there are no facts appearing in the complaint which warrant the relief asked *565therein, or any part thereof, a demurrer thereto on the ground that it states no cause of action must necessarily be sustained.
It is very apparent that such is the situation in this case. The provision in the conveyance under which the defendant holds the premises and privileges in question, that the grantee will provide “ a Family Pass for the party of the first part, her husband and her daughter to ride over the whole line of its said road ” so loftgvas it retains possession of such privileges, is but a personáh^’dbvenant which very clearly does not constitute a condition o£Íimitation on the title transferred. Upon a breach of such agreement by the defendant, the only relief to which the plaintiff becomes entitled is the damages which she sustains by such breach. But very clearly such a breach would not affect the defendant’s title, nor warrant a judgment ejecting it from the use of the rights and privileges so conveyed to it.
It is apparent, therefore, that the complaint contains no statement of facts which would warrant the relief, or any part thereof, which is asked therein.
The plaintiff, however, urges that under section 488 of the Code of Civil Procedure, if it appears in the complaint that any cause of action whatever exists against the defendant, a demurrer to the complaint for insufficiency cannot be sustained, even though the plaintiff claims nothing on account of such cause. Thus, in the case before us, although the complaint is drawn upon the theory that the defendant’s default in providing the pass terminates its title and right to longer possess the privileges and easements granted it, and this action is evidently brought to test that question, and no allegation that plaintiff has suffered any damages from a detention of the pass is found in the complaint, yet it is now claimed that, nevertheless, it appears in the complaint that the defendant has unlawfully made default in performing a plain and valid covenant on its part, and that at least nominal damages are implied therefrom ; hence a clear cause of action is found in the complaint, and this demurrer was properly overruled.
The case of Mackey v. Auer (8 Hun, 180) seems to hold the rule as broadly as above claimed; and the more recent decisions upon the question as to just when a demurrer for insufficiency to a complaint must be sustained, are not entirely harmonious. (See Cody *566v. First National Bank, 63 App. Div. 199 ; Black v. Vanderbilt, 70 id. 16, and cases there cited; Gilberts. Burnell, 92 id. 284; Hotel Register Co. v. Osborne, 84 id. 307; Gillespie v. Montgomery, 93 id. 403.)
I am, however, of the opinion that the demurrer to this complaint should have been sustained.
The judgment which overrules the demurrer holds in effect that the complaint does state a good cause of action. Manifestly it is not the one that the plaintiff intended to bring, and now that the pleading is sustained, will probably assume that she has the right to maintain. The claim which the complaint certainly does present, viz., that the defendant be adjudged to surrender up the rights and privileges derived through the conveyance in question, because it has made default in furnishing the pass, is apparently determined in the plaintiff’s favor, yet, as a matter of fact, no such result is intended, nor is any such rule of law established.
A claim which the plaintiff did not intend to present, and never has thoroughly presented, and one which the defendant would not be at all likely to understand was intended, is doubtless included within the facts averred in the complaint, viz., damages for the breach of covenant contained in the conveyance; and such is the claim that is really adjudged in her favor.
Now, what is the result of sustaining such a complaint? Suppose the defendant answers over and puts in a general denial. Is the trial court, upon proof of all the facts set forth in the complaint, to assume that this court has held the complaint good to its full extent, and award the judgment for ejectment, etc., therein asked for? Not necessarily so. But the most it could award would be a judgment of six cents for the damages suffered from defendant’s breach of covenant, a decision that would, I fancy, surprise the plaintiff, and which would operate to force upon her a judgment that she never intended to ask for, and that would bar her from ever obtaining the damages to which she is justly entitled.
But suppose the defendant does not avail itself of the privilege of answering over which the interlocutory judgment appealed from gives it. Then the plaintiff must apply to the court for final judgment, as if the defendant had originally made default in answering (Code Civ. Proc. § 1222), and the court then, under the provisions *567of section 1223, lias tlie same power and may make the same order as is permitted by section 1215. That is, the court must “ render the judgment to which the plaintiff is entitled.” But we have seen that she is not entitled to any of the relief which she has asked for. The most that she is entitled to from facts appearing in the complaint, is a judgment for nominal damages for breach of contract to furnish the pass. But by section 1207, upon a default in answering, “ the judgment shall not be more favorable to the plaintiff than that demanded in the complaint; ” and, therefore, though the facts would warrant such damages, the court may not give plaintiff a judgment therefor because she has not in this action asked for any such relief.
A judgment based entirely upon a cause of action found in a complaint, but on account of which no relief is asked, is more favorable than that demanded in the complaint.
Therefore, on the demurrer the complaint is held sufficient, but on the application for judgment thereon the court must hold that none can be rendered.
In my opinion, the defendant was correct in demurring to this complaint. It was the proper way to test the issue, which from all the facts set forth therein the plaintiff clearly tendered to defendant, and in this instance at least the “ cause of action ” upon which she based her prayer for relief was the cause of action which the facts set forth in the complaint must sustain.
I will not undertake to say that in all cases where the facts stated in the complaint are not sufficient to sustain a cause of action for which judgment may be rendered on default, a demurrer thereto must be sustained; but I do conclude that the complaint now under consideration does not state facts sufficient to constitute a cause of action within the meaning of section 488 of the Code, and that, therefore, the interlocutory judgment appealed from should be reversed.
All concurred, except Houghton, J., dissenting.
Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to the plaintiff to amend upon payment of costs of demurrer and of this appeal.