Redpath v. Redpath

75 A.D. 95, 77 N.Y.S. 668, 1902 N.Y. App. Div. LEXIS 2087

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1902
• Status: Published

Opinion

Pabkeb, P. J.

Although the facts averred in the complaint are, probably, not sufficient to warrant a judgment setting aside the conveyance and the agreement upon which it was based, yet there are sufficient facts stated to constitute a cause of action against the defendant. Assuming, as we must, that the defendant had ceased to furnish the requisite food, support and clothing, and refused to longer perform the contract on his part, the plaintiff would be entitled, under the covenant in the conveyance, to have a proper sum fixed by the court sufficient to furnish such support and such sum declared a lien upon the premises, and that it be enforced by a sale thereof. (Stehle v. Stehle, 39 App. Div. 440.) Such relief, at least, she is, upon the averments in her complaint, clearly entitled to, and the court had the power, and it was its duty, upon her establishing the same, to award her a judgment to that effect. An answer having been interposed, she was not limited to the precise relief claimed, but under her prayer for further relief, she was entitled to any consistent with the case set forth in the complaint. (Code, § 1207; Murtha v. Curley, 90 N. Y. 372; Bell v. Merrifield, 109 id. 202, 207.)

For this reason it was error to dismiss the complaint, and the judgment must be reversed.

All concurred.

Judgment reversed and new trial granted, costs to appellant to abide event.