text:
    OLIVER S. CARTER, et al., Respondents v. THE NEW YORK ELEVATED RAILROAD COMPANY, et, al. Appellants.

      Evidence, admission of improper, when not cause for reversal.—Expert opinions, admissibility of evidence bearing on their value as testimony.

    Although in an action brought to obtain a judgment for a permanent injunction testimony upon that issue adduced by the plaintiffs is improperly admitted, yet if enough other testimony appears which, as matter of law, supports the judgment for an injunction, that judgment will not be reversed.
    Where experts have given evidence as to their opinions of the value of certain real estate, the testimony of owners of adjoining real estate, although not experts, as it is called, as to the value placed by them on their respective parcels, is competent.
    Where the judgment below adjudges that the defendants be perpetually enjoined from maintaining and operating their railroad in front of plaintiffs’ premises, and adjudges that the structure be removed, and then adjudges that the judgment, in so far as it enjoins and restrains the defendants, shall not be operative until the expiration of ninety days from service, and then adjudges that if defendants shall, within eighty days from service, pay to plaintiffs a certain sum for damages to plaintiffs’ premises, then the judgment, in so far as it enjoins and restrains the defendants, shall not be operative and take effect; the whole judgment should not be set aside because the judge below, in ascertaining the amount so to be paid by defendants, received evidence as to what values owners of premises on the same street attached to their own property, or that of others, even if such reception were erroneous.

      The points of counsel are voluminous and exhaustive. They are too lengthy to be reported in full; and cannot well be condensed with justice to counsel and benefit to the bar. They can be referred to in the library of the court. Reporters.
    Before Sedgwick, Ch. J.. and Freedman, J.

      Decided November 21, 1889.
    Appeal by defendants from judgment entered upon findings made by a judge at special term. The facts sufficiently appear in the head notes and the opinion.

      Davies & Rap alio, attorneys, and Edward C. James of counsel, for appellants.

      Evarts, Southmayd & Choate, attorneys, and Joseph H. Choate, Thomas T. Sherman and William V. Rowe of counsel, for respondents.
   By the Court.—Sedgwick, Ch. J.

The judgment for the injunction in this case should be affirmed under the decisions that have been made in like cases. If it be assumed that testimony on this issue was improperly admitted, enough other testimony appeared that, as matter of law, supported the injunction under these decisions.

The court below proceeded to ascertain the terms, upon the performance of which by the defendants the injunction might be dissolved, and made rulings as to the evidence on this point, which the appellants now argues were erroneous. These rulings concerned opinions of the owners of adjoining property of the value of such property, they not being experts, as it is called, in estimating the values of real property. But the opinions of experts had been given in evidence, and it was important to ascertain the value as testimony of these opinions. The court was at liberty to examine the grounds of such opinions. These grounds were not matter of fact legally proved, and were, in part, at least, the values that the adjoining owners placed upon their property, for the market value would be the resultant of the opposition between buyers and sellers.

The rulings were not erroneous. But, if they were, they did not affect the absolute right to an injunction that the defendants stay their invasion of plaintiffs’ property. The ascertainment of the condition was not due to any equity the defendants had as against the plaintiffs, or because, equitably, the plaintiffs’ right to a permanent injunction was a modified one and not absolute. Substantially the condition was gratuitously made as to the defendants and was allowed for the sake of third parties. The whole judgment should not be set aside because the judge below ascertained what values owners on the street attached to their own property or that belonging to others.

In my opinion the judgment should be affirmed, with costs.

Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    LENA PAPPENHEIM, Respondent, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Finding of fact, inconsistent with conclusions of law and judgment, effect of on appeal.—Example of inconsistent finding.

    Where a finding of fact is in irreconcilable conflict with the conclusions of law and the judgment based thereon, the judgment must be reversed on appeal; this although there are other findings which fully sustain the conclusions of law and the judgment.
    So held where the whole theory of the action was that a certain use of a certain street was an excessive and inconsistent street use, and that the street had not been kept open in like manner as the other public streets in the city of New York are and of right ought to be; and the trial judge, among other findings, found, that the street, from the time of its opening, continuously had been and then was appropriated and kept open for a public avenue, highway and thoroughfare in the city of New York, in like manner as the other public streets in the said city are and of right ought to be; but, nevertheless, rendered judgment for the plaintiff.
    Before Feeedman, Tettax and Ingeaham, JJ.

      Decided November 21, 1889.
    Appeal from judgment rendered at equity term. The facts sufficiently appear in the opinion.

      Davies & Rapallo, attorneys, and Edward S. Rapallo and Brainard Tolies, of counsel, for appellants, on the point considered and decided, argued:
    The finding of the trial judge, “ That the said avenue from henceforth [its opening] continuously has been and now is appropriated and kept open for a public avenue, highway and thoroughfare in the city of New York in like manner as the other public streets and avenues in the said city are and of right ought to be,” is in irreconcilable conflict with the conclusions of law of the learned trial judge and with the judgment herein.
    If it be considered by this court that the finding of fact just quoted is inconsistent with any other finding, the appellants desire to call attention to the following decisions of the ' court of appeals, in each of which it is held that when two findings of fact are inconsistent the appellant is entitled, in support of his exceptions to the conclusions of law, to have that taken as true which is the more favorable to himself. Bonnell v. Griswold, 89 N. Y. 122; Schwinger v. Raymond, 83 Ib. 192; Conselyea v. Blanchard, 103 Ib. 222, 231; Redfield v. Redfield, 110 Ib. 671; Green v. Roworth, 113 Ib. 462. The question passed upon by the learned trial judge in this finding has been recognized in all the elevated railway cases, as a question of fact to be determined from a consideration of the facts and circumstances of each particular case, and upon examination of the nature and character of the particular structure under consideration. Story case, 90 N. Y. 122; Lahr case, 104 Ib. 291; Fifth National Bank v. N. Y. Elevated R. R. Co., 24 Fed. Rep. 114; Greene v. N. Y. C. & H. R. R. Co., 65 How. 165.

      Saclcett & Bennett, attorneys, and Charles Gibson Bennett, of counsel, for respondent, submitted no points on the question considered and decided.
   By the Court.—Freedman, J.

This is an appeal from a judgment rendered at an equity term of this court after a trial of the issues. The plaintiff sued as the owner of certain easements appurtenant to certain premises situate on Second avenue in the city of New York, which were alleged to have been taken or at least seriously impaired by reason of the construction, maintenance and operation of the elevated railway of the defendants in front of plaintiff’s premises. The judgment awarded damages to the plaintiff for the injuries inflicted in the past, and also gave an injunction to prevent the continued maintenance and operation of the railway unless a certain compensation was made. The whole theory of the action is that the construction, maintenance and operation of the elevated railway constitute an excessive and inconsistent street use, and that by reason of such construction, maintenance and operation Second avenue had not been kept open in like manner as the other public streets and avenues in the city of New York are and of right ought to be. But the learned trial judge, after finding that Second avenue, past and in front of plaintiff’s premises, had been laid out and opened as a public avenue under the Act of 1813, further found, as matter of fact, that the said avenue from henceforth (viz. its opening) continuously has been and now is appropriated and kept open for a public avenue, highway, and thoroughfare in the city of New York, in like manner as the other public streets and avenues in the said city are and of right ought to be. This finding is in irreconcilable conflict with the conclusions of law of the learned trial judge and with the judgment herein. From the fact that there are other findings which fully sustain the conclusions of law and the judgment, the fair inference is that, the finding referred to was made by inadvertence. It was made on the application of the plaintiff, and probably was not intended to be an unqualified finding. But in form it is unqualified, and it was made as a separate and distinct finding. This being so, and the Court of Appeals having repeatedly held, that whenever two findings of fact are inconsistent, the appellant is entitled, in support of his exceptions to the conclusions of law, to have that taken as true which is the more favorable to himself (Bonnell v. Griswold, 89 N. Y. 122; Schwinger v. Raymond, 83 Ib. 192; Conselyea v. Blanchard, 103 Ib. 231; Redfield v. Redfield, 110 Ib. 671; Green v. Roworth, 113 Ib. 462), a new trial must be ordered.

Another serious question is presented by the fact that the plaintiff acquired title to the premises to which the easements are claimed to be appurtenant, three or four years after the construction and the commencement of the operation of the elevated railway, and that she failed to connect herself with the street opening proceeding in which the easements originated, or with the title of some one who, as owner of the'premises, had a right to the easements prior to the construction of the elevated railway. The defect, if it be any, may be obviated on a new trial which, as already shown, must be had, and consequently it is not deemed necessary to decide the question now, nor to express any opinion on thé remaining questions which have been argued.

Judgment reversed and new trial ordered, with costs to appellants to abide the event.

Truax and Ingraham, JJ., concurred.


author: By the Court.—Ihgraham, J.

text:
    ORIGEN VANDENBURGH, Plaintiff and Appellant, v. THE NEW YORK CITY CENTRAL UNDERGROUND RAILWAY COMPANY, Defendant and Appellant; THE MAYOR, &c., OF THE CITY OF NEW YORK, Impleaded with others, Defendant and Respondent.—THE NEW YORK UNDERGROUND RAILWAY COMPANY was also Appellant.

      Judgment in excess of relief demanded, effect of.—Adjudications, when in excess of relief demanded.—Foreclosure, adjudication in as to iirior rights or rights in hostility, when without jurisdiction.—Power of court over its own judgments.—Laches, when no answer to a motion.

    A judgment against a defendant who does not answer in excess of the relief prayed for by the complaint is, as to such excess, at least irregular.
    An adjudication as to matters not necessarily involved in, or requisite or necessarily incidental to the granting of the relief prayed for, and a judgment as to such matters, is in excess of such relief; this although the complaint contains averments as to them, a fortiori when it does not. An adjudication as to such matters could only be effectual to create an estoppel, and if such effect could be given to it, it would be of itself relief in addition to that demanded by the complaint.
    The plaintiff in a foreclosure action cannot bring in a party claiming rights in priority or in hostility to the mortgagor as a defendant, and have such rights adjudicated upon adversely to him when he does not answer the complaint, at least not when the complaint does not set forth such claimed rights, contains no averments attacking the claims, and demands no specific relief as to them. An adjudication upon such rights under such circumstances is without jurisdiction.

      A court in which a judgment is rendered has full power to set it aside or modify it at any time.
    A delay of eighteen years should not, under the circumstances of this cases be held to be laches, no rights of third parties requiring that it should be so held.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided November 21, 1889.
    Appeal from order granting a motion to amend a judgment of foreclosure and sale made' by the defendant, the Mayor, &c.
    This action is brought to foreclose a mortgage, dated July 1, 1873; made by the defendant railway company. The complaint, among other things,'alleged,-that the property mortgaged and, on the first of July, 1883, possessed by the railway company, was the franchises of the company and the right of way for a railway branch to the Central Park and connecting with other railroads given and granted by the people of the state of New York to the defendant railroad company in, and under and through certain, streets, avenues, squares, parks and public places in the city of New York as located by certain maps filed by the company, with the right to enter upon, use and occupy the same as granted and authorized by said people ; and as such right of way, route and location for such railway branch to the Central Park and connections with other railroads might be thereafter lawfully altered, located, re-located, defined, enlarged or extended, together with all other rights of way belonging to said company, and the railway, tunnels and constructions for which then made and commenced on said routes and locations, arid all other structures then made or thereafter to be made by said company ; it further set forth the provisions of an instrument made between the company and the plaintiff, dated March 13,1.875, anda mortgage made by the company, dated April 19, 1872, alleging that such mortgage was excessive in amount, otherwise imperfect, and should, within three months thereafter, have been cancelled and discharged of record; it further alleged that “ The mayor, aldermen and commonalty of the city of New York is made defendant in this action, because the plaintiff was informed that it might have or claim an interest in the property covered and conveyed in the mortgage mentioned, and in the relief demanded in the complaint. No claim or demand is made against the mayor, aider-men and commonalty of the city of New York.” It prayed for a money judgment against the defendant, the railway company, that said mortgage be foreclosed and the company, and all persons claiming under it, be foreclosed of the right to perform any of the agreements contained in the instrument dated March 13, 1875 ; that the aforesaid mortgaged franchise and property be sold and the proceeds of sale be applied to satisfy the indebtedness due to the plaintiff; that the mortgage of April 19, 1872, be cancelled and discharged of record, and for an injunction against the company, its officers, agents and trustees, restraining ■ them from issuing bonds under the mortgage and from incumbering or interfering with its property ; and also prayed for such other and further relief as might be equitable and just in the premises.
    The mayor, etc., appeared in the action, but did not answer.
    An order of reference was made to a referee to take proof of the allegations of the complaint, to ascertain the amount due the plaintiff and report the facts found by him, and also to take evidence and report upon the matters referred to in an affidavit made by plaintiff.
    The referee reported to the court, and judgment was entered on his report. The judgment in the first paragraph adjudged, ‘1 that the report and all statements and findings of the referee therein, be and the same "are hereby in all things confirmed.”
    The referee, among other things, reported that “ the company had the - franchises, rights, powers, privileges, properties and rights of property granted by said acts at the time of the transactions hereinafter mentioned,” and the judgment in the second paragraph so specifically adjudged.
    The referee further reported that the indebtedness to the plaintiff “ was contracted and incurred during the year eighteen hundred and sixty nine, eighteen hundred and seventy, and in the early part of the year" eighteen hundred and seventy-one, and that the consideration therefor was given and granted by the plaintiff to said railway company on the faith, credit and value of the said franchises and property and the security agreed within that period by said railway company to be given upon them to the plaintiff therefor,” and the judgment in the fifth paragraph so specifically adjudged.
    The referee further reported, that on the 16th of August, 1875, this court, in an action pending therein, wherein the plaintiff herein was plaintiff and the railway company, defendant herein, was defendant, made an order, whereby it was ordered and adjudged that the defendant therein, “ was organized as a corporation, located its railway, branch and connections, commenced the construction of its tunnel and railway and owns the following property, property rights, and rights of property, that is to say, the right of occupancy, seizure and possession of the lands, premises and grounds hereinafter described, for the use and purpose of constructing, maintaining and operating a double-track railway ; for the use and purpose of constructing, maintaining and operating a branch railway to the Central Park, and railway connections with steam and horse railroads ; to make and maintain double or single tunnel or tunnels or subways for the same ; to light, ventilate and drain such tunnels or subways ; to make, construct and maintain openings for ventilation or light extending from such tunnel, tunnels or subways to the outer edges of .the sidewalks of the streets or avenues or to the surface of the squares under which the same shall be constructed ; to construct, maintain and operate an elevated railway from Ninety-ninth street to and along the Harlem river on said lands and premises ; to construct and maintain the proper platforms, stations and buildings thereon and therein ; to make and maintain the necessary connections, turnouts, sidings, switches and other conveniences for the proper working and accommodation of said railways, in, under, over, through and upon the aforesaid lands, premises and grounds ; to convey, for compensation, passengers, freight and property, in cars propelled by steam or other power therein or thereon during the progress of such constructions ; to make such excavations in said streets, avenues and squares and grounds under which said railways, tunnels or subways shall be constructed or over which such railway tracks shall be laid, as may be necessary from time to time ; to construct and maintain the proper platforms, stations and buildings on said lands, premises and grounds at such points along the route as may be most convenient for the ingress and egress of passengers and freight and necessary for the operations of the aforesaid railways and for proper communication between said tunnels, subways, platforms, stations and buildings ; to take possession, hold, use and occupy the before mentioned and hereinafter-described lands', premises and grounds, for all and singular the aforesaid uses and purposes, free and without any compensation therefor, for and during the period of time continuing from the present to and until the seventeenth day of April, in the year one thousand nine hundred and sixty eight.
    “And whenever necessary in, on or upon the said lands, premises and grounds during the period of time aforesaid, and whenever nécessary or convenient for such railway or railways, tournouts, platforms or stations, to take and use for the purpose of operating the same such public grounds, parks and places without compensation therefor, and to enter into and upon the soil of the same, to construct and maintain all and singular the aforesaid freely and without molestation, during the period last aforesaid, as given and granted, authorized and empower ed by chapter 230 of the Laws of 1868 and chapter 824 of the Laws of 1869 of the state of New York, and as the said lands, premises and grounds and the said railways, routes and their locations are hereinafter indicated, described, located and referred to, the same being in the city and county of New York. The lands, premises and grounds for the main line of the railway, with the right to use, possess and occupy the same as aforesaid, and the route and location of such main line, is located and situated as nearly as is possible within the lines of the parks, squares, streets, avenues and places named, to wit : Commencing in the City Hall park on the easterly line of Broadway; thence . easterly passing in front and in rear of the- old City Hall to' Centre street; thence under and across Centre street to City Hall place ; thence through City Hall place to Pearl street ; thence across Pearl street, northeasterly in a curved line to or near Mulberry street, at a point between Bayard and Park streets ; thence northerly under Mulberry street to Bleecker street, and continuing northerly to and under Lafayette place to Astor place ; thence northerly and easterly under Astor place, Eighth street, and across the southeast corner of the block between Eighth and ■ Ninth streets and easterly of St. Ann’s church, to and under Fourth avenue ; thence northerly under Fourth avenue and Fourteenth street and Fourth ' avenue to and under Union square ; thence northerly in, under and through. Union square to and under • Seventeenth street and Broadway, and under the latter to, near and northerly of Nineteenth street; thence northerly, bearing easterly in a straight line to and under and across Twenty-third street to and in, under and through Madison square, and continuing northerly in, under, on, over and upon Madison avenue to and along the Harlem River as the said lands, premises and grounds and the said railway, its route, line and location are more accurately located, defined and described in certain maps or sets of maps, plans, profiles, certificates and descriptions which said maps- or sets of maps, plans, profiles and descriptions are deposited, filed and described as follows, viz.:
    “ First.—A set of maps, plans and profiles consisting of four attached sheets, caused to be deposited and filed by the directors of said corporation as required by law, on the fifth day of March, one thousand eight hundred and seventy, in the clerk’s office of the city and county of New York, the same being maps, plans and profiles of the route, line and location of said railways and of the lands, premises, grounds and locations taken and to be taken and used therefor.
    “ Second.—A map caused to be deposited and filed in the register’s office of the city and county of New York by the same agencies and for like objects, on the tenth day of May, one thousand eight hundred and seventy-two, and being map number 733, of the maps now on file in said register’s office.
    “ Third.—A map deposited and filed in like manner and for like objects in said register’s office, on the fifteenth day of May, in the year last named, and being map numbered 734, now on file in said register’s office.
    66 Fourth.—A map and profiles consisting of two sheets attached, deposited and filed in like manner and for like objects, in said register’s office, on the ninth day of August, one thousand eight hundred and seventy-three, and being map numbered 746, now on file in said register’s office. There was filed and deposited at the same time written descriptions accompanying and explaining this map.
    66 The lands, premises and grounds for the said branch line of railway to the Central Park, with the right to use, possess and occupy the same, as aforesaid, and the route and location of said branch line, is located and situated as follows : Commencing under Broadway at the northerly line of Eighteenth street and continuing northerly under Broadway to and under Twenty-third street, to and under Fifth avenue, and in, under and upon Madison square, and thence northerly under Fifth avenue, underand across Twenty-fourth street and the public place adjacent thereto, and thence northerly under Broadway to, in, under and through the Grand Circle at the southwesterly corner of the Central Park, as the same is more particularly located, defined and described in the first and fourth sets of maps, profiles and descriptions before referredto. The land, premises and grounds for the lines connecting with steam and horse railroads as aforesaid, and the right to use, possess and occupy the same as aforesaid, and the routes and locations of such connecting lines are also fully located, defined and described in the first and fourth sets of maps, profiles and descriptions hereinbefore referred to. Together with all and singular the aforesaid property, easements, grants and endowments of the said corporation, with such rights, privileges and power to alter or change the lines, routes and locations of the said railway, branch railway and con-

      neetions, in, under, over and upon the said streets, avenues, parks, squares, public places and grounds, and to perpetuate the same that attach thereto, and also the constructions for said railway and tunnels, which have been commenced and are located on the routes and locations indicated and defined by said maps and profiles,” none of which matters were alleged in the complaint; and the judgment in the tenth paragraph so specifically adjudged.
    The referee further reported, “ that the right of occupancy, seizure and possession, with the specific uses, rights- and powers granted to the said railway company by the aforesaid statutes, as set forth and described in ■ said order, dated August 16, 1875, as .hereinbefore recited, are property and property rights, granted and conveyed in and by said indenture of mortgage, dated July 1, 1873, in connection with such right of way and other property therein and thereby conveyed and mortgaged, as such description relates, to land in the lines or boundaries of the streets, avenues and public places ; ” and the judgment in the eleventh paragraph so specifically adjudged.
    The referee further reported, “ that all the allegations contained in the complaint of the plaintiff in this action are true; ” and the judgment in the sixth paragraph so specifically adjudged.
    The referee further reported, “ that the said railroad company, prior to May tenth, eighteen hundred and seventy-one, commenced the construction of the tunnel and railway, which, by the statutes aforesaid, the said railway company was authorized to construct and operate ; that the workmen of said railway company were thence employed for several weeks at the excavation and masonry for the tunnel wall made and built on the adopted line for said railway between Bond and Great Jones streets in the city of New York; that the masonry at this point was commenced on a solid foundation at a. depth about thirty feet below the surface of the street, and was carried up to the springing line for the tunnel arch. That the said railway company also com-. menced work on the adopted line of said railway before the tenth of May, 1871, on Madison avenue, in the city of New York, near ninety-sixth street, on the adopted line of said railway, and thence there continued the said work until several hundred feet of grading and tunnel heading excavation were made at that locality, when work was suspended, as the city authorities were then desirous of' proceeding with the work of grading Madison avenue at that point” (none of which matters were alleged in the complaint) ; and the judgment in the thirteenth paragraph so specifically adjudged.
    The judgment further, by the twelfth paragraph, specifically adjudged, “ that the purchaser or purchasers under the sale herein ordered, his and their successors and assigns, shall hold the said mortgaged premises, franchises and property, with the right of occupancy, seizure and possession, and with and for the specific uses, rights and powers * * * * andas is herein ordered, adjudged and decreed.”
    The judgment further, by the fifteenth paragraph, specifically adjudged, that the mortgaged premises, franchises and property theretofore described be sold “ together with, as part thereof and appurtenant thereto, the aforesaid right of occupancy, seizure and possession, with the specific uses, rights and powers as hereinbefore ordered, adjudged and decreed.”

    And further, by the sixteenth paragraph, specifically adjudged, “ that said corporations, defendants, their officers and servants, will respect the aforesaid orders, judgments and decrees herein, and the due legal proceedings to be had pursuant thereto.”

    A sale was had under this judgment, by the referee appointed to make the sale, and the plaintiff herein, with one Hervey Sheldon, became purchasers, and the referee executed a deed to them. They after-wards conveyed to a corporation formed and organized under the name of “ The New York Underground Railway Company.” Thereafter the said “ The New York Underground Railway Company” applied to this court for, and obtained, an alternative mandamus directed to the commissioner and deputy commissioner of public works, commanding them to “ issue to the said company a permit to make at as early a day as in your judgment may be favorable for street excavations, as regards the season, such openings in the surface of the streets in the city of New York, between the City Hall and Forty-fifth street, as shall be necessary from time to time for' the purpose of constructing the company’s railway, in accordance with the provisions of chapter 824 of the Laws of 1869, along the line of the projected railway, as follows, namely: Commencing in the City Hall park on the easterly line of Broadway; thence easterly, passing in front and rear of the old City Hall, to Centre street; thence under and across Centre street to City Hall place; thence through City Hall place to Pearl street; thence across Pearl street northeasterly in a curved line to or near Mulberry street, at a point between Bayard and Park streets; thence northerly under Mulberry street to Bleecker street, and continuing northerly to and under Lafayette place to Astor place; thence northerly and easterly under Astor place, Eighth street and across the southeast corner of the block between Eighth and Ninth streets; and easterly of St. Ann’s church to and under Fourth avenue; thence northerly under Fourth avenue and Fourteenth street, and Fourth avenve to and under Union square; thence northerly in, under and through Union square to and under Seventeenth street and Broadway, and under the latter, near and northerly of Nineteenth street; thence northerly and bearing easterly in a straight line to, under and across Twenty-third street, to, in and through Madison square, and continuing northerly in and under Madison avenue to and along Harlem, river and beyond Forty-fifth street, and make return hereto according to law twenty days after the service hereof.” Or that you show cause to the contrary thereof, etc.
    Thereupon the Mayor, etc., moved at a special term of this court, upon notice to all the parties to the action and to the underground railway company, to amend the aforesaid judgment of foreclosure by striking out therefrom “ each and every order, declaration, adjudication or decree contained therein, which is in excess of the prayer for relief specifically asked by the complaint in the above entitled action, and especially the following portions of said judgment,” specifying them. " The motion was granted, and an order made striking out the specific adjudications above referred to, and amending the adjudication “ that the report and all the statements and findings of the referee therein, be and the same are hereby in all things confirmed,” by adding thereto as follows: “as to all the defendants except the city of New York, and that it be confirmed as to the city so far as the same may be in conformity to the provisions of this judgment.”
    Upon granting the motion the following opinion was delivered:
    “ Truax, J.—The judgment that the defendant, the mayor, &c., seeks to open, was entered herein on the 11th day of January, 1876. Two questions are presented to the court by this motion: the first one is, has the court power to vacate or amend its judgment thirteen years after the entry thereof ; and the second one is, is this a case in which the court should exercise such power if it has it ?

      “ In Hogan v. Hoyt, 37 A7". Y. 300, the court of appeals held, that a judgment of foreclosure and sale which had been entered in January, 1855, was properly amended nunc pro tunc in 1864. The question, said the court, was one addressed to the discretion of the court below. In Hatch v. Central National Bank, 78 IV. Y. 487, the court of appeals held, that it is within the discretion of the court in which a judgment is entered to vacate the judgment at the request of the plaintiff, although the order to vacate the judgment was not made until more than a year after the judgment had been satisfied. The judgment was satisfied August 7, 1876, the order granting the motion to vacate the judgment was made February 5, 1879. ‘ The power to amend,’ said the court of appeals, ‘ is an inherent power, and not limited in matters of substance by the sections of the Code—§ 174 of old Code, § 724 of new Code-while § 723 seems to authorize its exercise in the furtherance of justice.’ In Farrish v. Austin, 25 Hun, 430, the supreme court in the first department set aside a judgment sixteen years after its entry. These cases show that a court has power to set aside a judgment although more than one year has passed since the entry of the judgment.
    “ Is this case one in which the court should exercise such power ? The action was brought to foreclose a certain mortgage made by the New York City Central Underground Railway Company. The city of New York was made party to that action, but it was alleged in the complaint that it was made a party,'1 because the plaintiff was informed that the city might have or claim an interest in the property covered and conveyed in the two mortgages mentioned and in the relief demanded in the complaint.’ No claim or demand is made against the said mayor, aldermen and commonalty of the city of New York.
    “ The relief demanded was that the plaintiff have judgment for a certain sum of money and the costs of the action ; that it be adjudged that the mortgage dated July 1, 1873, be foreclosed, and also that said company and all claiming under it be foreclosed of the right to perform any of the agreements in the instrument dated March 13, 1875; that the mortgaged franchises and property be sold and the proceeds applied to satisfy the indebtedness due plaintiff ; that a certain mortgage be cancelled; that the said company, its officers and agents, be enjoined and restrained from issuing bonds under said mortgages and from encumbering or interfering with its property, and that the court grant such other and farther relief as may be equitable and just in the premises.,
    “ There is nothing in this demand for relief that in any way affects the city. The only parties who could be ‘ foreclosed ’ are those who claimed under the company. There is no allegation in the complaint that affects in any way the city, except the allegation that it might have or claim an interest in the property conveyed in the mortgages mentioned in the complaint and in the relief demanded in the complaint—and this allegation was joined to the statement that no claim or demand was made, and no relief was demanded against the city—because there is nothing to show that the city claimed under the New York City Central Underground Railway Company. But the judgment that was entered did very materially affect the city. It was adjudged, among other things, that all the allegations contained in the complaint were true in manner, form and substance ; that the said New York ,City Central Underground Railway Company owned the right and occupancy, seizure and possession of the land, premises and grounds afterwards described in the judgment for the use and purpose of constructing, maintaining and operating a double track railway ; for the use and purpose of constructing, maintaining and operating a branch railway to the Central park, and railway connections with steam and horse railroads ; to make and maintain double or single tunnel or tunnels or subways for the same; to light, ventilate and drain such tunnels or subways ; to make, construct and maintain openings for ventilation or light extending from such tunnel, tunnels or subways to the outer edges of the sidewalks of the streets or avenues or to the surface of the squares under which the same shall be constructed; to construct, maintain and operate an elevated railway from Ninety-ninth street to and along the Harlem river on said lands and premises ; to. construct and maintain the proper platforms, stations and buildings thereon and therein; to make and maintain the necessary connections, turnouts, sidings, switches and other conveniences for the proper working and accommodation of said railways. The judgment then proceeded to lay out the route of the road.
    “ It was also adjudged that the said Railway Company, prior to the 10th day of May, 1871, commenced the construction of the tunnel and railway which by statutes the ■ said railway company was authorized to construct and operate; that the workmen of said railway company were employed for several weeks thereafter at the excavation and masonry for the tunnel wall of said railway, and that ‘ said corporations defendants, their officers and servants, will respect the aforesaid orders, judgments and decrees herein.’
    “ This judgment as far as it affects the defendant, the mayor, aldermen, &c., of the city of New York, was erroneous. There was no allegation in the complaint that the judgment was prior, superior or hostile to the interest of the defendant, the mayor, aldermen, &c., of the city of New York, and the only effect that such judgment could rightly have against the city would be to cut off any rights that it had which were subsequent to the mortgage.
    “ It has been held that a foreclosure action is not the proper mode to litigate rights claimed in priority or in hostility to the mortgage. Merchants’ Bank v. Thomson, 55 JV. Y. 7. Under the authority of this case, the adjudications against the defendant (determining the route of the road and that the Néw York City Central Underground Railway had commenced operations in building the road as required by the statutes creating the company) were unauthorized and voidable, because there was no allegation in the complaint that warranted such a relief, and no such relief was demanded in the complaint. It may be that the defendant the mayor, &c., of-the city of New York, is not bound by this judgment, and that they could attack the judgment at any time collaterally; but the cases first above cited show that they have the right to move to correct or amend or modify this judgment, and they should not be compelled to wait until the judgment is used as a means of offence against them before they attack it.
    “ The court had no jurisdiction to make the judgment that was made, and this want of jurisdiction may be set up collaterally or otherwise. The want of jurisdiction to make the judgment complained of may be set up by the defendent as a defence, but the defendant is also at liberty by a more direct and summary proceeding, to have the judgment set aside and vacated.
    “The motion to amend the judgment by striking out the portions referred to is granted with ten dollars costs.
    “ The order may be settled on two days’ notice.”
    From the order entered on the decision of the motion the present appeal was taken.

      Hoadley, Lauterbach & Johnson, attorneys for appellants, The New York City Central Underground Railway Company and the New York Underground Railway Company; Henry D. Sedgwick attorney for the plaintiff-appellant; and George Hoadley, Edward Winslow Paige, and Henry D. Sedgwick of counsel, on the questions considered in the opinion, argued:
    I. This application is too late. McMurray v. McMurray, 9 Abb. N. S. 315; Matter of Becker, 28 Hun, 207 ; McMurray v. McMurray, 41 How. 41; Depew v. Dewey, 2 Sup. Ct. (T. & C.), 515, 521; Boyd v. Vanderkemp, 1 Barb. Ch. 273; Soulden v. Cook, 4 Wend. 217; Voorhees v. Bank of U. S., 10 Peters, 449, 472; Pease v. The Propeller Napoleon, Newb. 37, 41; Cunningham v. Cassidy, 17 N. Y. 276, 282; Wood v. Moarhouse, 1 Lans. 405, 411; Rigney v. Small, 60 Ill. 416, 420; Jackson v. Spink, 59 Ib. 404, 408-9; Bush v. Sherman, 80 Ib. 160; Leonard v. Taylor, 12 Mich. 398; Goodwin v. Burns, 21 Ib. 211 ; Cunningham v. Felker, 26 Iowa, 117, 120; Cooley v. Wilson, 42 Ib. 425; Steward v. Marshall, 43 Greene, 75; Lockwood v. McGuire, 57 How. 266. After the rights of third parties intervene (which is certainly this case), it will not be done at all. Learned v. Foster, 117 Mass. 365, 369; Burns v. Thayer, 115 Ib. 93; Jackson v. Morter, 82 Penn. St. 291, 296; Gibson v. Winslow, 38 Ib. (2 Wright), 49; Tripp v. Cook, 26 W. R. 143; Williams v. Doran, 23 N. J. Eq. 385, 386; Williams v. Allison, 33 Iowa, 278; Hanks v. Neal, 44 Miss. 212, 226; Drake v. Collins, 6 Ib. (5 How.) 253. We have a right to stand on the judgment of foreclosure and the deed. Wheaton v. Sexton, 4 Wheat. 503, 506; Voorhees v. Bank of U. S., 10 Peet, 449, 478; United States v. Arredondo, 6 Peters, 739, 730; Voorhees v. Bank of U. S., 10 Ib. 477-8; Grignon’s Lessee v. Astor, 2 How. 340; Florentine v. Barton, 2 Wall. 210, 215-7. So far as the corporation counsel’s exemption from the consequences of laches is concerned, we are .entirely ready to stand upon the doctrine of the case he cited at special term. Greer v. The Mayor, 1 Abb. -AT". S. 206. We might, perhaps, be willing to admit that the ordinary human being should hold his property in due subordination to the comfort and convenience of this high officer; but when the reason for his interference after thirteen years is that the rights which then were sold have since become valuable, we respectfully decline to relinquish our property for any such reason. Voorhees v. Bank of U., S., 10 Pet. 449, 476; Lockwood v. McGuire, 57 How. 266, 268. The case of Farish v. Austin, 25 Hun, 430, relied on by the corporation counsel, is not applicable, for that was a case of a judgment void for want of jurisdiction, which is not this case.
    II. The property and franchises which were sold under the' judgment having during the delay of the city passed into the hands of purchasers in good faith, the judgment will not be disturbed. Holden v. Sackett, 12 Abb. 473, 475; Cow. and Hill’s Notes, 1094; Lockwood v. McGuire, 57 How. 266, 268; Tripp v. Cook, 26 Wend. 143; Crowley v. Hyde, 116 Mass. 589; Reeve v. Kennedy, 43 Cal. 643. See also the cases cited under the first point.
    III. The granting of this motion is forbidden by statute. Matter of Tilden, 98 N. Y. 434, 442, 443 ; Foote v. Lathrop, 41 Ib. 359, p. 444; Code Civil Procedure, §§. 1282, 1283, 1290.
    IV. The notices of no claim, contained in and served with the complaint, cannot avail the counsel to the corporation. First, the statute does not authorize a notice of “ no claim,” but does authorize a notice of “ no personal claim.” Secondly, the notice of “no personal claim” means only that a decree for money will not be taken against the defendant so notified. It does not and is not intended to affect the bar of the judgment against any interest of the defendant so notified in the property sold. Thirdly, the notices of “ no claim” on their face show that their effect was to notify the city, not of “ no claim,” but of “ claim.” In the fourth place, even if it could be contended that it was a fraud to take the judgment, in view of these notices, the city is at least seven years too late to make this objection. An action for relief on the ground of fraud was, at the time this judgment was rendered, barred in six years. It is barred in six years now. 2 Revised Statutes, 301, § 51; Code of Civil Procedure, § 382. Both these provisions start the statute at the date of discovery of the fraud, which, in this case was at least twelve years before the present motion was made. Moreover, this is not an action to vacate on the ground of fraud. It is a motion. It cannot be said by the city, with safety, that this is a motion to vacate a decree for irregularity, for the right to prosecute such motion successfully was then and is now barred in one year. 2 Rev. Stat. 359, § 2; Code of Civ. Pro., § 1282.
    V. The relief granted by the decree did not exceed that demanded in the complaint. It was upon the ground of such excess, forbidden by the 275th section of the Code of Procedure, in force January 11, 1876, when the judgment was rendered, that this motion was made and argued at special term. The word relief in that section refers only to the executive action to be taken by the court, in accordance with the justice of the cause, as required by the facts found. It had no reference whatever to the effect of the judgment by way of estoppel. The estoppels of a judgment are not measured by the relief prayed for. Said relief may be only the recovery of trifling damages, e.g., one cent, or one dollar, in an action of ejectment or replevin. Sheldon v. Edwards, 35 N. Y. 286; Aurora City v. West, 7 Wall. 82; Pray v. Hegeman, 98 N. Y. 351; Gould v. Evansville and Crawfordsville R. R. Co., 91 U. S. 526; Henderson v. Henderson, 3 Hare, 115. That the true meaning of the word “relief” has no reference to the findings contained in the judgment is shown by the definitions found in the standard dictionaries. Abbott’s Law Dictionary; Rapalje & Lawrence’s Law Dictionary; Wharton’s Law Dictionary. The term “ relief,” as distinguished from “ discovery,” has been in use by the court of chancery from the earliest ages, and refers exclusively to the methods or measures to be adopted by the chancellor for the enforcement of rights, required by the findings of the decree. At law the only relief was by judgment for money or possession of lands or chattels. In equity specific relief in the nature of the granting of injunctions, the compelling of specific performance, and otherwise, has been long customary. The fortieth section of Story’s Equity Pleadings is in the following words:—“ The eighth part of the bill is the prayer for relief. This of course must vary according to the circumstances of the particular case, and the nature of the relief sought. The usual course is for the plaintiff in this part of the bill to make a special prayer for the particular relief, to which he thinks himself entitled, and then to conclude with a prayer of general relief, at the discretion of the court. The latter can never be properly and safely omitted ; because if the plaintiff should mistake the relief, to which he is entitled in his special prayer, the court may yet afford him the relief, to which he has a right, under the prayer of general relief, provided it is such relief, as is agreeable to the case made by the bill. But if there is no prayer of general relief, then if the plaintiff should mistake the relief to which he is entitled, no other relief can be granted him, and his suit must fail, at least unless an amendment of the prayer is allowed.” See also §§ 26, 27, 21, 31, 34, 35.
    The only relief demanded in this case, from the effect of which the city now seeks to escape, is founded in the second paragraph of the complaint, in these words : “ That it be adjudged that the said mortgage * * * be foreclosed ; * * * that the aforesaid mortgaged franchises and property be sold, and the proceeds from such sale be applied to satisfy the aforesaid indebtedness due to the plaintiff,” and the prayer for general relief contained in the fourth paragraph of the prayer : “ That the court will grant such other and further relief as may be equitable and just in the premises.” Following the rule prescribed in the case of Simonson v. Blake, 12 Abb. 331, which holds that “ Thereliefgranted to a plaintiff in a case in which there is no answer, cannot exceed that which is specifically demanded in the complaint. It is not enough for him to state facts entitling him to the relief; he must also ask it. A judgment entered when no answer is put in, giving the plaintiff relief which was not specifically asked by the complaint, i. e., a judgment in foreclosure, for deficiency, where the complaint merely asked for a sale, should be vacated on motion. Such a judgment is not merely irregular but is void or voidable as unauthorized, and the right to move to have it vacated is not limited to one year.” We proceed to examine whether the plaintiff Vandenburgh did not specifically “ ask” the relief granted. This brings us to a consideration of the changes made by the decree of i Judge Truax : First. From the sixth paragraph of the judgment he erased the following words: “ that all of the allegations contained in the complaint of the plaintiff in this action,” the residue of the sentence being—“ are true in manner, form and substance, as therein stated.” The finding that the facts averred in the complaint are true is not “relief.” The second erasure is of the whole of the tenth paragraph of the judgment. This is fully justified, as it seems to us, by the following averment of the complaint: “ A further judgment was recently duly rendered by this court in favor of the plaintiff against said company that its property be sold by a receiver to satisfy the judgment first mentioned, and restraining the company, its officers and agents, from incumbering and dealing with its property.” The third erasure is of the whole of the thirteenth paragraph of the judgment. This adjudication was justified by the averment of the complaint, that the company—“ at the time of the transactions,” mentioned in the complaint, had—“ the franchises, rights, powers, privileges, property and properties granted by said acts.” An adjudication as to the commencement of the work was proper and necessary, since by no other means could the company then “ have ” the franchises given by the acts. In order that the company should possess its franchises and rights at the date of these transactions, free from danger of forfeiture by the State, it was necessary that the work should have been begun, as thus found in the decree. Therefore, this finding in the decree was not only legitimate under the averments of the- complaint, but necessary to entitle the plaintiff to the relief he prayed, viz : “ that the aforesaid mortgaged franchises and property be sold,” and the. proceeds applied in discharge of the indebtedness. This testimony and finding was also rendered necessary by the averment of the complaint that in July, 1873, there was “ conveyed and mortgaged by said mortgage,” the property—“ then possessed and so thereafter granted by said company as security for the said indebtedness due to the plaintiff.” In the next place, under the prayer for relief, “ that the aforesaid mortgaged franchises and property be sold,” it was proper, if not necessary, for the court to ascertain and specify what the mortgaged premises, franchises and property of the railway were. The description, contained in the complaint, of the mortgaged franchises and premises, did not prevent the court from taking testimony and specifying in the judgment, in detail, the nature and extent of the franchises and property to be sold. The defendant was absolutely concluded as to the finding that the work had been commenced, by failing to except to the report. The report had been filed, and the notice required by the court rule duly given and the defendant has never excepted. Somers v. Milliken, 1 Crary Spec. Pro. 298-299, (note). This adjudication was also justified, if not required, by the further averment of the complaint, that the “ constructions for ” the railway and tunnels—“ then made and commenced on said routes and locations, and all other structures then made or thereafter to be made,” constituted part of the mortgaged premises. It is as futile to object to the finding based on this as it would be to claim that a decree could not find the number and order the sale of locomotives owned by a mortgagor, and mortgaged either specifically or under the general name of “ equipment.” It certainly cannot be true, even although a judgment cannot be stayed, impaired, or affected by a “mistake in the description of property,” that where premises have been mortgaged .by a description, legally accurate, but practically not conveying sufficient information, and the relief prayed is for the sale of the mortgaged property thus described, the court is without power to take proofs, or, through the agency of a referee, to ascertain and state a sufficient or improved description, so that it may know what to sell, and bidders may know what to buy, and the purchaser what he has acquired. So far from being beyond the power of the court thus to act, it would seem to be its duty to protect itself and the public from the consequences of any doubt and uncertainty that might thereafter arise, as to the nature and extent of the property sold. Especially is this true in cases of corporate rights, where the question which the intending purchaser puts to himself is: “ What are the franchises which I shall secure by my purchase ? ” The object of the suit is, as far as plaintiff is concerned, to secure a price sufficient to pay his claim; so far as the defendant is concerned, not only to secure the highest possible price so as to avoid any deficiency, but also to leave a surplus for payment into its treasury after discharge of the mortgage debt. As these are lawful and beneficial purposes, a court of equity is bound to lend its aid to promote them, and how could they be more usefully promoted than by an accurate and careful ascertainment and detailed description of the property and franchises, by a finding that the' conditions of the franchise—those upon which its existence and value depend—have been performed,—not by way of estoppel against the State,—which not being party to the proceeding is not bound thereby,—but by way of advice and information to purchasers, and preservation of the evidence of compliance with the condition as between the parties ? It was customary in the English court of chancery, and is proper in this country, to insert in a decree a declaration of the rights of the parties, as well as a finding of the facts of the case, before proceeding to the ordering or mandatory directions of the decree. 2 Darnell’s Chancery Practice, *1004. “ In our practice the final decree does not contain such a summary of the facts, which was examinable on a bill of review; but, to countervail this absence of statement in the decree, we have adopted the practice of looking back of the decree into the whole record of the pleadings and proceedings. The conclusions of fact deduced from the proofs are not spread upon the record in extenso, unless through the medium of areport made by a Master or Commissioner. The decree, it is true, may proceed to state conclusions of fact as well as of law, and often does so for the purpose of rendering the judgment of the court more clear and specific.” Putman v. Day, 22 Wall. 66-67. The practice adopted by the referee in this case is abundantly supported by authority. Wolcott v. Weaver, 3 How. 159; Security Fire Insurance Company v. Martin, 15 Abb. 479. The seventy-third rule of the supreme court, as numbered at the time the judgment of foreclosure was entered in this case (present rule 61), provides that “ In every judgment for the sale of mortgaged premises the description and particular boundaries of the property to be sold, so far, at least, as the same can be ascertained from the mortgage, shall be inserted.” This rule requires the court to insert in its judgment for the sale of mortgaged premises a specific description, with particular boundaries, so far as the same can be ascertained from the mortgage, and permits the court to do what vvas done in this case, viz., to proceed to ascertain, through the agency of a referee, descriptions of the rights and boundaries of the land more precise than those furnished by the mortgage, and to insert the same in the judgment of foreclosure. This construction of the rule is required by the use of the words “ at least.” That this is the necessary conclusion is also shown by other portions of the same rule, which, together with § 1626 and § 1636 of the Code of Civil Procedure (re-enacting 2 Revised Statutes, p. 191, § 151, and Code of Procedure, §§ 163 and 164), provide for the sale of mortgaged property upon foreclosure in parcels. To ascertain the proper subdivision of land, so as to enable sales to be made in parcels, is the work of a referee, or of the court, upon testimony, and of a judgment at some stage of the proceedings, identifying and specifying much more particularly than in the mortgage, the parcels intended thus to be sold. Jones on Mortgages, § 1574, In Gayle v. Singleton, 1 Steward, 566, the supreme court of Alabama held that—“ A decree ordering the sale of property in the hands of heirs must specify and identify it.” In Railroad Company v. Swasey, 23 Wall. 405, the supreme court of the United States held that “ A decree of foreclosure and sale is not 6 final,’ in the sense which allows an appeal from it so long as the amount due upon the debt must be determined, and the property to be sold ascertained and defined.” The objection has never before been made that the chancellor has no power to ascertain and describe with particularity what is to be sold. It has been claimed that this could not be done by mere reference to the mortgage, but, in Sims’ Lessee v. Cross, 10 Yerger, 459, the supreme court of Tennessee held it sufficient that the Master’s report and decree furnished the means of identifying the lands sold by reference to the mortgage. In Hurtt v. Crane, 36 Md. 29, it was held that “ a decree should determine the rights and liabilities of all the parties to the cause.” The fourth erasure is of the following portion of the sixteenth paragraph: “And that said corporations defendants, their officers and servants, will respect the aforesaid orders, judgments and decrees herein and the due legal proceedings to be had pursuant thereto.” This is no more than a requirement of that obedience and respect which the law requires of all parties to a judgment independently of and without such requirement. On general principles, an order that a defendant “respect” the judgment or decree entered in a case to which he is a party, cannot be erroneous." It so happens, however, that we are not left to consider general principles in this case. By specific statutory provisions in force at the time, such was the law of the state of New York. 2 Rev. Stat. (p. 192), §§ 157 and 158; § 1675 of the Code of Civil Procedure, § 131 of the Code of Procedure. The fifth erasure is of the following important portion of the second paragraph of the judgment: “ And had the franchises, rights and powers, property, properties and rights of property granted by the said acts at the time of the transactions hereinafter mentioned.” This paragraph of the judgment follows literatim et verbatim the averments of the complaint. Surely, if the plaintiff, in a foreclosure suit, avers that, at the time of the making of the mortgage, the defendant owned the premises in fee simple, and that he made the mortgage embracing them, and then pray that the said mortgaged premises be sold in fee simple, the Court’s finding that the averment of the complaint as to the extent of the defendant’s title is true, coupled with relief as demanded, and granting no more relief than that prayed for, cannot be objected to thirteen years afterward by a defendant who holds a collateral interest in the property because he failed to answer. The sixth portion of the judgment stricken out is the whole of the fifth paragraph. This fifth paragraph likewise follows the averment of the complaint, literatim et verbatim, the only difference between the two being that the complaint avers and the judgment finds. The relevancy of the averments and of the decree cannot now be disputed collaterally. This was matter to be objected to on appeal if at all, but it was impossible to object to it on appeal, for the reason that the averment was proper and necessary in order to bring the plaintiff within the security of the mortgage. The mortgage was to Brown and to Alexander. Brown resigned his position as trustee. Either Alexander, the remaining trustee, should have brought the suit with or without joining the plaintiff as a co-plaintiff, or the plaintiff, as cestui que trust, bringing the suit, must show that he is beneficiary of the mortgage. The seventh erasure is the whole of the eleventh paragraph of the decree. This was necessary and proper as an ascertainment and definition of the mortgaged property. If the defendant did not like this description, it could have excepted to the report of the referee, of which it had due notice. This was the specific property and no other, of which the prayer for relief contained in the complaint sought the sale, and to strike out these descriptions is equivalent to holding that, as against a non-answering defendant, a prayer for the sale of specific property, described as contained in maps, cannot be granted, by transferring the description from maps to words, even when the map itself is referred .to as correctly delineating the property, but that both the description in words and the reference to maps must be erased. The eighth erasure was the whole of the twelfth paragraph of the judgment. This clause of the judgment may be treated as relief, but is certainly not in excess of that demanded, and was fully warranted by the complaint, by the report of the referee and by the facts. If the purchaser acquired anything he necessarily acquired the right to hold “ the said mortgaged premises, franchises and property,” with this right—“ of occupancy, seizure and possession, and with and for the specific uses, rights and powers,” as aforesaid. If he did not get this he got nothing. The last erasure is the excision from thq fifteenth paragraph of the decree the following: “ together with, as part thereof and appurtenant thereto, the aforesaid right of occupancy, seizure and possession, with the specific uses, rights and powers, as hereinbefore ordered, adjudged and decreed.” This provision of the decree was also rendered necessary and proper by the averments of the complaint. ’ A complaint which alleges in unqualified terms that at the date of the mortgage the defendant was possessed of certain franchises, which describes these franchises, which is followed by testimony of their existence, and a report finding the same, and finally by a decree sustaining the same, cannot, it seems to us, be stricken from the record as void upon collateral attack thirteen years afterwards, or at any time, when the object of the suit is remembered, viz., to sell, not the property and franchises of a corporation which had lost its rights, but of an existing and going corporation; when it is averred, in the very first sentence of the complaint, that, at the date of the mortgage, the corporation possessed its franchises, and when all the paragraphs of the judgment complained of consisted either in the description of the franchises, or in findings that they existed at the time of the mortgage. Allegata, probata and judicata are here in strict conformity. The averment is that, at the date of the mortgage, the corporation had “ the franchises, rights, powers, privileges, property and properties granted by said acts; ” also that they were mortgaged to Alexander as security for the indebtedness to the plaintiff. Their definition and description follows, and the prayer- is for -the sale of “ the aforesaid mortgage, franchises and property.”
    VI. This court had jurisdiction to render the decree now complained of. While the learned judge below maintained that a foreclosure action is not the proper mode to litigate rights claimed in priority or in hostility to the mortgage, to which proposition he cited the case of Merchants’ Bank v. Thomson, 55 N. Y. 7. yet, he does not claim that, under its authority, the adjudication determining the route of the railway and that the Mew York City Central Railway had commenced operations in building as required by the statutes creating the company, were unauthorized and voidable by motion, except on the ground that, “there was-no allegation in the complaint that warranted such a relief, and no such relief was demanded in the complaint.” It is true that, in a later sentence of his opinion he says : “ The court had no jurisdiction to make the judgment that was made, and this want of jurisdiction may be set up collaterally or otherwise.” But neither in the case of Merchants’ Bank v. Thomson, cited by Judge Truax, nor in Emigrant Industrial Savings Bank v. Goldman, 75 N. Y. 125, is it held that, where there are proper allegations, disclosing the claim of the plaintiff, that the title sought to be foreclosed is prior to that of the non-answering defendant, the court is without jurisdiction, and its judgment is void. In the former case it was held that the interest of a mortgagor’s wife is not cut off by judgment of foreclosure, although she be made a party defendant, “ without allegations in the complaint that the mortgage is prior, superior or hostile to her interest,” and it is added (syllabus): “ Even with such allegations a judgment passing upon her 'rights is erroneous. A foreclosure action is not the proper mode to litigate rights claimed in priority or hostility to the mortgage.” This language must be taken as meaning precisely what it says. The case was one in which the decree was attacked, not collaterally, but directly. It was an appeal from an order in a foreclosure action directing the purchaser to complete his purchase, and the court held (Judge Forger announcing the opinion), not that a judgment passing upon rights claimed in priority or hostility to the mortgage is void, but that it is “ erroneous,” or, in other words, voidable by appeal only. This decision, therefore, establishes that the city’s remedy was by appeal, and, so far as it bears upon the questions now pending, tends to prove that the city is in the wrong, not the right. In Emigrant Industrial Savings Bank v. Goldman the decision was, among other things, that: “ The plaintiff may make prior incumbrancers parties for the purpose of having the amount ascertained and paid out of the proceeds ; but where no such purpose is indicated in the complaint, and no such provision is incorporated in the judgment, the prior lien is not cut off.” This, also, was an appeal, a direct attack, a controversy, in the case itself, as to the distribution of claims to a surplus. The question in the present case, therefore, is not of jurisdiction, but averment. What did the complaint contain ? If it contained averments claiming priority for the claim of the mortgagee over that of the city, the fact-that the court held, as it did, does not constitute a void, but, at the most, an “ erroneous ” judgment—in our opinion, a correct judgment. Now, when, as against the city, made a defendant because, “ it might have or claim an interest in the property recovered and conveyed in the two mortgages mentioned and in the relief demanded in this complaint,” we find the plaintiff averring ; that, at the date of the mortgage, the New York City Central Underground Railway Company was organized under chapter 280 of the Laws of 1868, and chapter 824 of the Laws of 1869, and had “ the franchises, rights, -powers, privileges, property and properties granted by said acts,” and also when we find the plaintiff averring that the property conveyed by the mortgage bearing date at a time more than two years after the passage of the Act of 1869, and when, if the work had not been commenced, there were no franchises to mortgage, or, at least, none not forfeitable for breach of condition, embraced the franchises of the company and the right of way ' on, under and through certain streets accepted, defined and located by the company in the maps filed in 1870, 1872 and 1873, as herein-before stated, “with the right to enter upon, use and occupy the same as granted and authorized in said acts * * * and the railway and tunnels and the constructions for which then made and commenced on said routes and locations,” how can we doubt that the city was notified, by proper averments, that the plaintiff did claim that, by the mortgage of the company, there was secured for his .benefit a valid incumbrance on the right of way described, and which right of way was a right to occupy and possess the streets granted by the state of New York, superiorto any right of the city therein ?

      William H. Clark, counsel to the corporation, and Thomas P. Wickes and D. J. Dean, of counsel, on the questions considered in the opinion, argued:
    I. Under the complaint in this action and the demand for relief no judgment could be taken by default establishing any right as against the city of New York. The sole scope and object of the action is confined to a foreclosure of the mortgage, sale of the franchises of the mortgagor, the determination of the amount due to the mortgagee, and the application of the avails of the sale to the payment of the sum due him. The plaintiff in the complaint says that the city is made a defendant, because the plaintiff is informed that it might have or claim an interest in the mortgaged property. Having thus admitted an interest existing in the city, the complaint then disclaims any intention to litigate any issue in respect thereto in this action by saying “no claim is made against the mayor, aldermen and commonalty of the city of New York.” The plaintiff, therefore, admits that the city’s interest is paramount and prior, and not subsequent or subordinate to the mortgage. The demand for relief asks: (1) Judgment against the railroad company for $16,800; (2) That the mortgage be foreclosed and the company and all claiming under it foreclosed of any right to issue bonds under the. mortgage, and that the franchise and property of the company be sold, and the proceeds applied to pay the indebtedness to the plaintiff. Under such a complaint, with such a demand for relief, it was obviously improper to determine, as against the city, any fact which might be the subject of possible controversy between the plaintiff and the city. For instance, it was illegal to adjudge as against the city that the plaintiff had fulfilled the condition of its charter, which required the commencement of construction within two years after the passage of the act, or to determine that the route and branches devised by the plaintiff had been lawfully and sufficiently located. Such issues, as against the city, could be lawfully determined only in an action in which the relief sought should be the determination of such issues. The averment of the complaint herein, that no claim or demand was made against the mayor, aldermen and commonalty of the city of New York, precludes any judgment upon such issues. Upon the city’s default to plead, no judgment could be taken more favorable to the plaintiff than the simple foreclosure and sale of the railroad companies’ rights. Alexander v. Katte, 63 How. 262; § 275, old Code Procedure; § 1207, new Code; Edson v. Girvan, 29 Hun, 422; Swart v. Boughton, 35 Ib. 281; Hall v. Hall, 38 How. 97; Simonson v. Blake, 12 Abb. 331; Hurd v. Leavenworth, 1 Code Reports N. S. 278; Kelly v. Downing, 42 N. Y. 78.
    II. In this action to foreclose the mortgage made by the railway company upon its franchises, no question could be litigated which concerned the paramount right of the city to its streets. The action was a mere action of foreclosure; the right of the mayor, aldermen and commonalty in relation to the occupancy of its streets is in no sense subsequent to that of the mortgagor or mortgagee, and, therefore, is not the proper subject of litigation in the foreclosure action. The right of the city which is asserted by it when it controverts the right of the company to construct its' road in the streets, is in the nature of an adverse claim to the title of the railway company. Such, a claim cannot be tried in the foreclosure of a mortgage made by the company. Eagle Fire Insurance Company v. Lent, 6 Paige, 635; Merchants’ Bank v. Thomson, 55 N. Y. 7 ; Lewis v. Smith, 9 Ib. 502; Rathbone v. Hooney, 58 Ib. 463; Emigrant Industrial Savings Bank v. Goldman, 75 Ib. 127; Emigrant Industrial Savings Bank v. Clute, 33 Hun, 82; Payne v. Grant, 23 Ib. 134.
    III. The motion to vacate the judgment is the proper remedy. Simonson v. Blake, 12 Abb. 331; Lowber v. The Mayor, 26 Barb. 262; Andrews v. Monilaws, 8 Hun, 65.
    IY. Lapse of time more than one year is not sufficient to defeat the application. The error sought to be reviewed is not a mere technical irregularity, which is waived if not sought to be corrected within one year, but is of such a nature that the judgment is unauthorized and voidable, and the error may be corrected at any time. 2 Rumsey Practice, p. 576 (1888); Simonson v. Blake, 12 Abb. 331; Park v. Park, 80 N. Y. 156; Farish v. Austin, 25 Hun, 430.
    Y. Under the circumstances revealed by the record, the public interest represented by the mayor, aldermen and commonalty of the city of New York, will not be prejudiced. by the neglect of the corporation counsel to discern the character of the judgment, nor by his delay make this motion. No laches is chargeable against the corporation counsel, the complaint failing to demand any relief against the mayor, aldermen and commonalty, and, on the other hand, averring that no claim or demand was made against them, justified the corporation counsel in assuming that no judgment would be entered in the action, which would in any degree affect the public interests which he represented. It was not laches, therefore, for him to assume that no issues were settled to the prejudice of the public by the judgment, and further to rely upon the principle which precluded the entry of any judgment inconsistent with the complaint, He also had the right to rely upon the fact that if such authorized judgment should be rendered it would be vacated whenever brought to the notice of the court. And even if it could be truly said that the corporation counsel has been neglectful, in that this motion was not sooner made, yet the court will not allow public interests to be prejudiced thereby. Greer v. The Mayor, 1 Abb. N. S. 210 ; Seaver v. The Mayor, 7 Hun, 331 ; Brooks v. The Mayor, 12 Abb. N. C. 350; Lunney v. The Mayor, 14 Weekly Dig. 140; Ladd v. Willet, 22 Ib. 521; Prior v. Prior, 49 Hun, 502.
   By the Court.—Ihgraham, J.

This action was commenced in the year 1875 for the foreclosure of a mortgage made by The New York Central Underground Railway Co. to secure the payment to the plaintiff a sum exceeding $90,000 and interest. The mortgagor and certain other parties having or claiming liens upon the property, with the mayor, aider-men, &c., of the city of New York, were made parties defendants.

The complaint alleges the making and execution of the mortgage, allegations as to the liens of the other defendants and the description of the property •described in the mortgage.

The only allegation affecting the respondent is as follows: “ The mayor, aldermen and commonalty of the city of New York is made defendant in this action, because the plaintiff was informed it might have a claim or interest in the property covered and conveyed in the two mortgages mentioned and in the relief demanded in this complaint. No claim or demand is made against the said mayor, aldermen and commonalty of the city of New York.”

The relief demanded is that the plaintiff have judgment against said company for the amount claimed to be due to him; that it be adjudged that the mortgage be foreclosed; that said company and all claiming under it be foreclosed of the right to perform certain agreements set up in the complaint; that the mortgaged franchises and property be sold, and the proceeds of such sale be applied to satisfy the indebtedness due to this plaintiff; that a certain other mortgage described in the complaint be cancelled and discharged of record, the company be restrained from issuing bonds under such mortgage and from encumbering its property, and that the court grant such other and further relief as may be equitable and just in the premises.

The respondent appeared in the action and demanded service of a copy of the complaint which was duly served upon the counsel for the corporation, but it interposed no answer to the complaint. Subsequently an application was made for judgment, and notice thereof was served upon the counsel .to the corporation. In pursuance of this notice, and so far as appears in the absence of the counsel to the corporation, an order was entered whereby it was ordered and adjudged, that the plaintiff have judgment for the relief demanded in the complaint, and referring it to a referee to take proof of the allegations in the complaint, to ascertain the amount due to the plaintiff and report the facts found by him to the court, and that said referee also take evidence and report upon certain matters referred to in an affidavit of the plaintiff annexed to the notice of the application ; and on the referee’s report, dated the 11th of January, 1876, without further notice to the respondent, judgment was entered directing a sale of the mortgaged premises by a referee.

In March, 1889, the respondent applied to the court to strike from said judgment each and every other declaration, adjudication or decree contained therein which is in excess of the prayer for relief, specifically asked for by the complaint; and this is an appeal from an order of the special term granting such motion.

This judgment certainly contains extraordinary provisions. In an action brought to foreclose a mortgage upon a franchise it assumes to adjudicate that the mortgagor had performed all the conditions required by the statute granting the franchise, had commenced the construction of its railway, and owned the right to appropriate a large portion of the streets and parks of the city of New York, which the judgment proceeds to particularly describe, without paying any compensation therefor, and that the purchaser under the sale therein authorized should hold the said mortgaged premises with the right of occupancy, seizure and possession, and with and for the specific uses, rights and powers, as in the order and report of the referee recited and declared, and this judgment was rendered on the default of the defendant.

There was no intimation in the complaint that any attempt would be made to obtain an adjudication as to the extent of these rights and franchises, or as to their existence at the time of the commencement of the action, or that any judgment would be asked for affecting in any manner the rights of the city of New York to claim that such rights and franchises had been lost or forfeited, and no such provision in the judgment was necessary to vest in the purchaser at the sale all rights that the railroad company (the mortgagor) had, either at the time of the execution of the mortgage or at the commencement of the action. So far as the city was concerned the only relief that could be given by the judgment was the relief asked for in the complaint. Code of Procedure, § 275. For it is a general principle necessary to the administration of justice that the complaint must advise the defendant clearly of what is claimed. It is not alone the case as made but also the judgment asked for that controls. Swart v. Boughton, 35 Hun, 284; Kelly v. Downing, 42 N. Y. 72.

Appellant insists, however, that the adjudication of a fact is no part of the relief which the court grants. That the relief is “ the executive action to be taken by the court in accordance with the justice of the cause as required by the facts found. It had no reference whatever to the effect of the judgment by way of estoppel.”

As to the facts which must exist to entitle plaintiff to the relief granted, it is clear that granting the relief is an adjudication that such facts exist. Thus, in an action upon a promissory note, a judgment for the plaintiff for the amount, is an adjudication that there was a valid note, a consideration given, and that the whole amount was due and the relief granted would be a judgment that plaintiff recover of defendant the amount. So in this action to grant the relief that was asked for, it was necessary to find, as a fact, that the mortgage was made by defendant, and that there was a certain sum due thereon; and as to those facts the estoppel of the judgment applied. But it was not necessary to entitle plaintiff to such relief to find that the defendant had built a part of the road, or that, in another action to which this defendant was not a party, it had been adjudged that the railroad company had located its road and commenced its construction and owned the property.

The existence of those facts not being alleged in the complaint and not being necessary to entitle the plaintiff to the relief for which he had asked, an adjudication as to the existence of those facts had no . relation to the foreclosure of the mortgage, which is the relief demanded in the complaint; and if the court in the judgment made such an adjudication by decreeing that such facts did exist, such an adjudication could only be effectual to create an estoppel; and if such effect could be given to it, it would be of itself -relief in addition to that demanded in the complaint.

The plaintiff was, therefore, entitled to a judgment appropriating the interest of the mortgagor to the payment of the amount secured by his mortgage, and any interest the city had in the property subsequent to the mortgage, was cut off by the judgment. The city had no answer to a demand for such a judgment and could not have interposed a defence to the action, but any attempt of the court to adjudicate that such rights did exist was, so far as it affected this defendant, without jurisdiction in this action.

It is settled that, in an action for the foreclosure of a mortgage, the rights of parties'who claim in priority or in hostility to the mortgagor, cannot be litigated, and that a judgment of foreclosure granted by default only affects the interests of those subsequent to the mortgage ; that the decree does not affect rights paramount to those of the mortgagor and the mortgagee. Merchants’ Bank v. Thomson, 55 N. Y. 7 ; Rathbone v. Hooney, 58 Ib. 463 ; Emigrant Industrial Savings Bank v. Goldman, 75 Ib. 127.

Nor is there the slightest doubt as to the power of the court to set aside or modify the judgment at any time. As was said by the court of appeals in Hatch v. Central Natl. Bank, 78 N. Y. 487, “ These cases show the power of the court over its own judgments and its habit to exercise it in aid of justice ; and it is an inherent power and not limited in matter or substance by the Code.”

Nor do I think the application was made too late. The defendant is a municipal corporation and, so far as appears, the judgment was never served upon the law officer of the corporation, and the fact that other officers of the corporation had notice of the judgment, or that in any other proceedings the attention of the law officers of the corporation was called to this judgment, did not, under the circumstances, make it improper for the court, in the exercise of its discretion, to amend the judgment. Nor do the rights of third parties require that this application should have been denied. One of the purchasers at the sale by the referee was the plaintiff in the action ; he must be chargeable with knowledge of the irregular form of the judgment, and a purchaser from him can acquire no greater rights than he had. ' The voluminous briefs submitted by the appellants have been considered, but we are satisfied that it would be a gross injustice to the city and to the public to have allowed this judgment as originally entered to stand ; and the court below was right in the exercise of its discretion vested in it in granting the application.

Order appealed from should be affirmed with costs.

Sedgwick, Oh. J. and Freedman, J. concurred.