p. 139Miln P. Palmer, as Trustee, etc., of Francis B. Hegeman, Deceased, Respondent, v. Nelson H. Salisbury, Individually and as Assignee of Abram Steers, etc., Appellant, Impleaded with Pasquale Altieri and Others.Headnote
Amendment of a complaint—the order must direct its service on a defendant who is in default.An order directing the amendment oí a complaint without directing its service upon the defendant, and giving him an opportunity to answer it, although.he may he in default in not answering the original complaint, is erroneous.
Appeal by the defendant, Helson H. Salisbury, individually and ■as assignee of Abram Steers, etc., from an-order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 10th day of ■January, 1899, granting the plaintiff leave to amend his complaint.
Henry O. Atwater, for the appellant.
Howard Mo Williams, for the respondent.
There can be no doubt that the court had power in the .proper case to allow the amendment to the complaint, but the rule is, almost without exception, that whenever a complaint has been amended it is necessary that a copy of it should be served upon the defendant, and that he should have an opportunity to answer it, if .he desires. The fact that he has defaulted in answering the original
p. 140complaint is of no importance. It may well be that he did not choose to answer the original complaint, but that he might desire to put in issue the facts which the plaintiff finds it necessary to allege by the amendment. The order, therefore, was erroneous in permitting the amendment of this complaint without giving the defendant an. opportunity to answer. '
For this reason the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, without prejudice to a motion on the part of the plaintiff, upon payment of above costs, to set aside the judgment and serve an amended complaint, if he shall be so advised.
Van Brunt, P. J., Barrett, Ingraham and McLaughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to a motion by plaintiff, on payment of such costs, to set aside judgment and serve an amended, complaint.