Lape v. Lape

23 A.D.2d 539, 255 N.Y.S.2d 953, 1965 N.Y. App. Div. LEXIS 4950

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1965
• Status: Published

Opinion

Order, entered on June 15, 1964, denying defendant’s application to open his default and to vacate the judgment entered against him, unanimously modified, on the law, without costs or disbursements, and the motion is granted to the extent of vacating the second decretal paragraph thereof and in place thereof inserting a new decretal paragraph directing that the plaintiff recover of the defendant and have judgment on the second cause of action in the sum of $10,000 with appropriate interest from the date of demand for the return of the chattels. The second cause of action, alleging a conversion of plaintiff’s jewelry by defendant, sought as relief only a recovery of the monetary equivalent of such jewelry. In such circumstances it was improper for the court to include in the judgment a direction that the defendant return the jewelry to the plaintiff. CPLR 3215 (subd. [b]) expressly provides that upon a default the judgment entered “shall not exceed in amount or differ in type from that demanded in the complaint.” Accordingly, while the court could enter a judgment for the sum of money demanded on the second cause of action, it could not enter a judgment directing the return of the property — relief not demanded in the complaint. Of course, the relief here granted being for money damages only, it may be in order to reappraise the propriety of the order of arrest. Settle order on notice. Concur — Breitel, J. P., Rabin, Valente, Stevens and Staley, JJ.