p. 237Elizabeth C. Badger, Respondent, v. Mattie D. Johnston, Appellant, Impleaded with James J. Degnan and Thomas J. Johnston.Headnote
Extra allowance in a judgment by default in a mortgage foreclosure — it is authorized, under a notice of application for judgment.•Section 3253 of the Code of Civil Procedure authorizes the granting of an extra allowance in a mortgage foreclosure action, even though the judgment is rendered upon default.
If the notice of the application for judgment he broad enough, and be served upon the defendants who have appeared in the action, it is not necessary that a further-notice of the application for the extra allowance be served.
Appeal by the defendant, Mattie D. Johnston, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 3d day of March, 1905, denying the said defendant’s motion to modify a judgment theretofore entered in the action by striking out an additional allowance awarded the plaintiff.
Henry D. Merchant, for the appellant.
John M. Rider, for the respondent.
This was a suit to foreclose a mortgage for $6,500. No answer or demurrer was interposed by any of the defendants. The appellant alone appeared. Her attorney was duly served with a notice of application for the relief demanded in the complaint. . On the return day of the motion no one appeared but the attorney for the plaintiff, who took the usual order of reference to compute, with ten dollars costs, and subsequently obtained from the court, as he was entitled to do without further notice, a direction for the entry of final judgment of foreclosure and sale. This judgment awarded to .the plaintiff an additional allowance of two and a half per cent on the sum due, under section 3253 of the Code of Civil Procedure. The appellant complains of this allowance as irregular, claiming that it could not be made after the order of reference to compute, without further notice. We think that the notice of application for the
p. 238relief demanded in the complaint was broad enough, to authorize all the steps .that were subsequently taken in the action in behalf of the plaintiff. The point is also made that the court had no jurisdiction to grant an additional allowance where no defense had' been interposed. This would be true if the allowance were made on the ground that the case was difficult and extraordinary; but section 3253 has been uniformly construed in this department as permitting an extra allowance of two and a half per cent upon-the rendition of judgment by default in mortgage foreclosure suits, and the language of the section clearly warrants this construction. So far a's the propriety of the allowance in this particular case is concerned we are not willing to interfere with the. discretion exercised by the County Court in granting it. •
The order appealed from should be affirmed.
Present — Bartlett, Woodward, Rich and Miller,. JJ.
Order of the Comity Court of Kings county affirmed, with ten dollars costs and disbursements'.