We think the court below properly held the action was for replevin. The complaint was defective in omitting to allege property in the plaintiff, but it did contain sufficient to authorize a *258recovery on contract. The demand for relief was, for a return of the property, or in case a return could not be, for the value of' the property. The general rule is, as contended by appellant’s counsel, that the demand for relief does not necessarily determine the character of the action, but the plaintiff may obtain the relief the facts alleged in his complaint warrant. But I think this rule is subject to qualification. There are some actions whose character is necessarily determined by the demand for relief. I think an action in replevin is one. The general rule, I think, .is often stated too broadly, unless it be considered only as applicable where the defendant has answered. It is entirely possible that a complaint may state no good cause of. action of any kind, and yet if the defendant fails to answer or demur, judgment will be entered in the same manner as upon the best of pleadings. Here it is apparent that the pleader intended to set forth a cause of action in replevin, and demanded the appropriate relief. The defendant has made default. ■Had the plaintiffs’ facts failed to state any cause of action they would have been entitled to judgment on the defendant’s default. I do not see why their position should be worse, because by going through the details of the complaint facts can be gathered which would 'support an action on contract.
The action being ‘thus on replevin, the order of arrest was authorized if the defendant had disposed of the goods, even though without the intent to defeat this particular remedy. (Barnett v. Selling, 70 N. Y., 492.) The question of fact as to the defendant’s fraudulent representations was properly decided by the Special Term.
The only remaining point is the leave given the plaintiffs to amend this complaint and defective affidavit and requisition. If the action was in replevin the court had power to allow the amendments, and the question was one of discretion, both as to the amendment and as to the impositions of terms. The plaintiffs might well have been mulcted in costs for their defects in procedure. But we do not feel disposed to interfere with the decision of the court below on that point.
Orders appealed from should be affirmed, without costs.
Dykman, J., concurred; Barnard, P. J., not sittingOrder affirmed, with costs and disbursements.