and 138 New York State Reporter CLARKE, J. It appears from the record that one Hermann began an action to foreclose a mortgage on the property in question, which proceeded to judgment and sale, and resulted in a surplus of over $14,000 deposited with the chamberlain Plaintiff, Hookey, began an action to foreclose a junior mortgage, in which defendants Greenstein and Hirsch set up the defense that the mortgage sought to be foreclosed was usurious and void. In that action the appellants Adelstein and Avrutine, who had filed a mechanic's lien against the premises described in the complaint, were made parties defendant, it being alleged that: "They have or claim some interest in or lien upon the said mortgaged premises or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of the said mortgage, and is subject and subordinate thereto." The said appellants did not appear or answer. Thereafter the action proceeded to trial, resulting in a judgment declaring the mortgage usurious. Thereafter, upon the consent of the plaintiff and the defendants Greenstein and Hirsch, who had obtained the judgment in their favor, the court vacated and set aside that judgment, and upon a written stipulation to that effect entered a judgment in which it was ordered that the complaint be deemed amended, so as to set forth the fact that the premises therein described, to foreclose a mortgage against which this action was brought, had been sold by the foreclosure of a prior mortgage, and as a result of the said sale there is now in the hands of the chamberlain of the city of New York a large sum of money, upon which the said mortgage debt is a lien prior to that of the defendants herein, and adjudged and decreed that the plaintiff have judgment against the defendants, and that the defendants and all persons claiming under them be forever barred and foreclosed of all right, claim, lien, and equity of redemption in the said mortgaged premises; that the plaintiff have a lien on the said surplus money on deposit with the chamberlain of the city of New York to the credit of the action entitled "Leopold Ehrman v. Joseph Greenstein et al.," prior in lien to that of the defendants herein, in the sum of $3,000, with interest and costs and allowance, making a total of $3,646.91. The appellants complain, first, of the order setting aside the original judgment. Their grievance is that they have lost the benefit of the judgment which declared the plaintiff's mortgage usurious and void. Of course, if this judgment had stood, a prior claim to the surplus moneys in the hands of the chamberlain would have been wiped out, and the appellants' chance of obtaining a portion thereof on their subsequent lien would have been improved. Not having been a party to that mortgage, they were in no position to raise the question of usury. The defendants Greenstein and Hirsch need not have raised it in the first instance. If so, the action would have proceeded to judgment, and the appellants would have been in the same position they are now in that regard. Having the right to waive it in the first instance, those defendants and the plaintiff had the right to consent to the vacation of the judgment and the withdrawal of that defense and the entry of a judgment for plaintiff in the action. The only error alleged is that after the entry of the judgment the attorneys lost control of the proceedings, and an order vacating the judgment which had been entered could only have been made upon the consent of the parties themselves, and these consents were signed by their attorneys. The appellants, however, are in no position to raise this question. In the absence of complaint from the clients, the court assumes the authority of the attorneys to act for them. The appellants next complain that the court had no power to amend the complaint without notice to them, although they were in default, because, while they might have had no answer to the original complaint, and could not themselves set up the usurious nature of the mortgage, yet, when the amendment undertook to assert a lien upon the surplus fund and determine the priority of such lien, they ought to have been allowed to answer, if so advised; and they further complain that the judgment was improper, in that it established a lien upon said surplus fund and the priority thereof. It is true that section 1207 of the Code of Civil Procedure provides that, where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint. The judgment under review is not more favorable than that demanded in the complaint. The judgment demanded in the complaint was for the foreclosure of the mortgage, and that the defendants and all persons claiming under them be forever barred and foreclosed of all right, claim, and equity of redemption in the said mortgaged premises. That is what this judgment provides. Instead, however, of providing that the property be sold, it having been made to appear to the court that the property had already been sold upon a judgment of foreclosure and sale under a prior mortgage, and that there was a surplus in the hands of the chamberlain, equity adapted the form of relief requested to the facts existing at the time of its application. It is true that, notwithstanding the sale, the action could have proceeded and judgment entered in the ordinary form. "It seemed quite proper to allow the suit on the junior mortgage to proceed to judgment, notwithstanding that there has been a sale under the first decree, with a resulting surplus, in order to establish the interest of the junior mortgagee in such surplus, where his right to share in it is denied by a plea of usury interposed in his action. For the purposes of the judgment foreclosing the second mortgage, the surplus occupies the place of the land and the costs are to be taken out of those proceeds with the amount due on the mortgage." Bushwick Savings Bank v. Traum, 26 App. Div. 532, 50 N. Y. Supp. 542, affirmed upon opinion below 158 N. Y. 668, 52 N. E. 1123. No sale of the property could have been had, however, under such judgment, because that had already been sold under a prior mortgage; but the surplus remaining in the hands of the court under that proceeding took the place of the land. The judgment, being presented in the surplus money proceedings, would have entitled the judgment creditors thereunder to that proportion of the surplus money in that order of priority which the judgment entitled said creditors to as against the land. In other words, the judgment against the land would have foreclosed all of the defendants of their right and title and interest in the land as against the plaintiff. When presented in the sur and 138 New York State Reporter plus money proceedings, it would have likewise foreclosed all of these defendants, as against the plaintiff, of their right, title and interest in the surplus moneys. What the learned court has done is to cause to be expressed in the judgment the precise effect that the judgment would have had, if it had been the ordinary judgment for foreclosure, neither more nor less. To complain that by making a judgment express in words precisely its legal effect, upon the ground that nothing was said in the original complaint about surplus moneys arising upon a former action, as when the complaint was drawn no such condition of affairs existed, is to present a technical objection without force or substance. The order appealed from should be affirmed, with $10 costs and disbursements. PATTERSON, P. J., and McLAUGHLIN and LAMBERT, JJ., concur. INGRAHAM, J. (dissenting). I concur with Mr. Justice CLARKE as to so much of the order as refused to vacate the order setting aside the judgment and allowing an amendment to the complaint, but I do not think the court had power to enter a judgment upon the amended complaint without notice to the defendants in the action who were in default and who had no notice of or opportunity to be heard upon a judgment based upon this amendment. Section 1207 of the Code of Civil Procedure provides that: "Where there is no answer, the judgment shall not be more favorable to the plaintiff than that demanded in the complaint." It was here sought to foreclose a second mortgage. There was no question of a surplus to which the plaintiff, if he established the validity of his mortgage, could be entitled, and the mortgagor had defended by alleging that the mortgage sought to be enforced was void on account of usury. When plaintiff saw fit to amend the complaint, so as to ask to have a direct adjudication as to the surplus which had been realized and which was in court, I think the defendants who had not consented to the amendment and were in default should have had notice of the amendment and an opportunity to defend against a demand for a judgment which was essentially different from that asked for by the original complaint. I think the construction to be given to this section of the Code of Civil Procedure requires that a summons and complaint, when it is so amended as to ask for substantially different relief from that demanded in the original complaint, and which was not, then in the contemplation of any of the parties, should be served upon those defendants who have not appeared before a judgment can be entered which grants to a plaintiff the relief demanded by the amended complaint, and the court cannot deny a defendant that right by considering that the judgment newly demanded would accomplish no greater results than would have been accomplished by the judgment as originally demanded. MEDINA GAS & ELECTRIC LIGHT CO. v. BUFFALO LOAN, TRUST & SAFE DEPOSIT CO. (Supreme Court, Appellate Division, First Department. May 24, 1907.) 1. TROVER AND CONVERSION-WHAT CONSTITUTES. Plaintiff corporation executed to defendant, as trustee, a mortgage to secure the payment of certain bonds, depositing the bonds with defendant. Subsequently one of the officers of plaintiff, who owned practically the entire stock of the corporation, agreed with defendant that the bonds in its possession should be pledged to it for his individual indebtedness. Held, that the subsequent delivery of the bonds by defendant to another constituted a conversion by defendant of the bonds. [Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trover and Conversion, §§ 84, 86.]. 2 MORTGAGES-PROPERTY COVERED SUBSEQUENTLY ACQUIRED PROPERTY. Plaintiff corporation executed to defendant, as trustee, a mortgage to secure the payment of certain bonds. Thereafter one of the officers of plaintiff, who was practically the owner of the entire stock of the corporation, agreed with defendant that the bonds should be pledged as security for his personal indebtedness to defendant. Defendant thereafter converted the bonds by delivering them to another for a consideration. The mortgage conveyed all the particularly described property of the plaintiff, and also all and singular all the other real estate, "whether the same have been or may be hereafter acquired" by the mortgagor, or "may thereafter be acquired by it," and all other property, real, personal, or mixed, which may have been acquired or may thereafter be acquired, etc. Held, that the legal lien created by the mortgage did not cover, so as to convey the same to the purchaser at foreclosure sale, the right of action for the conversion of the bonds, though the mortgagee might have an equitable lien on after-acquired property, which he could enforce by action or by taking possession of the property. 8. CHATTEL MORTGAGES-AFTER-ACQUIRED PROPERTY. At law the right of a mortgagee to have subjected to the lien of his mortgage chattels which shall be acquired by the mortgagor subsequent to the execution of the mortgage depends upon the mortgagee taking possession of the after-acquired property. [Ed. Note. For cases in point, see Cent. Dig. vol. 9, Chattel Mortgages, §8 208, 209.] Laughlin and Scott JJ., dissenting. Appeal from Trial Term, New York County. Action by the Medina Gas & Electric Light Company against the Buffalo Loan, Trust & Safe Deposit Company. Judgment for plaintiff, and defendant appeals. Affirmed. Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ. Edward W. Hatch, for appellant. INGRAHAM, J. This action, which was commenced on the 14th day of September, 1895, was to recover from the defendant for the conversion of certain bonds by the defendant. The plaintiff made and executed to the defendant, as trustee, a mortgage to secure the payment of 10 bonds of $1,000 each. After this mortgage was executed and recorded, the 10 bonds were, on the 21st day of September, 1886, in the possession of the defendant. On that day one Stranahan, sec 104 N.Y.S.-40 and 138 New York State Reporter retary of the mortgagor and the owner of the most of its capital stock, agreed with the defendant that the 10 bonds then in its possession should be pledged as security for his indebtedness to defendant, and the defendant thereupon retained possession of said bonds until on or about the 27th day of December, 1890, when it converted the same by delivering the bonds to the German American Bank of Buffalo, in consideration of the sum of $14,650 paid by the German American Bank to the defendant, and the said bank thereupon became the bona fide owner and holder of said bonds for value before maturity. On the 26th day of August, 1895, the plaintiff demanded of the defendant the said bonds and the coupons thereto attached, or payment to it of the amount due upon the said bonds, and the defendant has refused to comply with the said demand. On the 4th day of February, 1893, the defendant, at the request of the German American Bank, brought an action to foreclose the mortgage. Judgment was finally entered in that action, foreclosing the mortgage and directing a sale of the mortgaged property, which property was sold by the sheriff and a conveyance of the property sold duly executed and delivered to the purchaser. I agree with Mr. Justice SCOTT that there was no conversion of these 10 bonds and no cause of action existed in favor of the creditor until the transfer of the bonds by the defendant to the German American Bank. Prior to that time the bonds thus in the possession of the defendant had no validity and imposed no obligation upon the obligors. No cause of action existed to enforce the bonds or the mortgage to secure them, as the bonds were not valid and existing obligations of the mortgagor. The agreement between the defendant and Stranahan was not binding on the mortgagor, and created no lien on the bonds, and gave to the defendant no right to retain them. Consequently nothing that the defendant did gave validity to the bonds, or imposed any liability at all upon the mortgagor, or gave the creditor any cause of action against the defendant. The subsequent delivery of the bonds by the defendant to the German American Bank was, however, a conversion by the defendant of the bonds, as by that delivery to the bank the latter became the bona fide holder for value of the bonds and entitled to enforce them against the mortgagor. This was settled by the Court of Appeals on appeal from a judgment in the action to foreclose the mortgage. 162 N. Y. 67, 56 N. E. 505. Upon the delivery of these bonds by the defendant to the bank, therefore, a cause of action arose in favor of the mortgagor, to whose rights the plaintiff has succeeded, for a conversion of the bonds by the defendant; and, as this action was commenced within six years after this act of the defendant which was a conversion of the bonds, it is not barred by the statute of limitations. The remaining question is whether this cause of action, which thus arose on the 27th day of December, 1890, was included in the property transferred to the defendant as trustee for the benefit of the bondholders, and whether the subsequent sale under the judgment foreclosing the mortgage vested the title to this cause of action in the purchaser, and the plaintiff was thereby divested of such cause of action. The mortgage was dated September 15, 1886, and recited the |