Luckey v. Mockridge — 112 A.D. 908

Majority

p. 908

First Department,

April, 1906.

David B. Luckey, as Trustee in Bankruptcy of the Estate of Frank H. Mockridge, Bankrupt, Respondent, v. Grace A. Mockridge and Others, Appellants.

Headnote

Motion and order — ex parte order allowing the service of an amended summons and' a supplemental and amended complaint should be vacated —failure to annex copy of proposed amendment to papers used on such motion.

Appeal from an order denying a motion made by .the defendants to vacate an ex parte order obtained by the plaintiff allowing the' plaintiff to serve an amended summons and a supplemental and amended complaint.

This motion should have been granted. The plaintiff obtained an order by which he was allowed to amend the summons in this action and to serve an amended complaint without notice to the defendants who had appeared in. the action. As stated in the opinion on another appeal in this case (ante, p. 199), decided herewith, that motion was irregular, as obtained without notice to the defendants who had appeared in the action, and also because there was not annexed' to the moving papers a copy of the proposed amended complaint. It follows that the order appealed from must be reversed, with ten’ dollars costs and disbursements, and the motion granted, with ten dollars cost's. McLaughlin, Laughlin, Clarke and Houghton, JJ., concurred. Order reversed, with, ten dollars costs and disbursements, and motion granted, with ten dollars costs."