Cassidy v. Boyland

3 N.Y.S. 258, 18 N.Y. St. Rep. 338

Opinion

McAdam, C. J.

The summons, which was served without a complaint, gave notice to the defendant that upon his default judgment would be taken against him for $277.66, with interest. The defendant allowed a default to be taken, and the plaintiff obtained an ex parte order increasing the amount claimed to $410 and interest, and entered judgment for this amount. The present application is to set aside said order and judgment. The court had power to grant the amendment, (Reed v. New York, 97 N. Y. 620; Deane v. O’Brien, 13 Abb. Pr. 11,) but it should have been upon notice to the defendant, that he might determine whether to defend the demand as enlarged, or allow judgment to go against him therefor, (see James v. Kirkpatrick, 5 How. Pr. 241; Birdsall v. Fuller, 11 Hun, 207.) The defendant having notice of the order now, it will be allowed to stand, but the judgment will be vacated, and the defendant permitted to serve his answer to the complaint, as amended, within six days after service of the order to be entered hereon. Ho costs.