Sanford v. Hart — 152 N.Y.S. 869

Majority

p. 869

SANFORD v. HART et al.

(No. 7078.)

(Supreme Court, Appellate Division, First Department.

April 23, 1915.

Headnote

Judgment <@=>106—Default—Defendant Sued in Dual Capacity.

A defendant, impleaded individually and as a corporation, not having answered the complaint alleging a cause of action against him individually, is in default; and plaintiff is entitled as a matter of right to relief against him, both individually and as a corporation.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 160, 162, ISO-197 ; Dec. Dig. <@=>106.]

p. 870

Appeal from Special Term, New York County.

Action by Drurie S. Sanford against Frieda Hart and another, impleaded with Max M. Hart and M. M. Hart, Incorporated. From a judgment in favor of defendants, plaintiff appeals. Modified and affirmed.

Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.

Arthur Furber, of New York City, for appellant.

J. Sidney Bernstein, of New York City, for respondents.

The complaint alleged a cause of action against the defendant Max M. Hart individually, for the recovery of a sum of money; and the defendant Max M. Hart, not having answered that complaint, is in default, and the plaintiff is entitled as matter of right, upon that default, to relief as against the defendant Max M. Hart individually.

We are entirely satisfied with the disposition of the trial judge as to the cause of action alleged against Frieda Hart and Jeanette C. Jeffe.

The judgment appealed from must be modified, by directing a recovery gainst M. M. Hart, Incorporated, and Max- M. Hart individually, for the sum of'$2,888.50, and as so modified, the judgment is affirmed, with costs to the defendants Frieda Hart and Jeanette C. Jeffe as against the plaintiff. Settle order on notice,.