Majority
p. 368Work et al. v. Ogden et al., (Tibbits, Intervener.) (Supreme Court, General Term, First Department. November 13, 1891.) Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.
Headnote
Amendment of Pdeadinss—Absence of Parties.In an action to foreclose a lien on pledged securities, T. appeared, and interposed an answer claiming ownership, but failed to appear at the trial. Held, that an amendment of the complaint at the trial, so as to inoreasethe demand for judgment, without notice to him, was erroneous as to him, and a judgment entered thereon should be set aside, and he should be aUowed to defend.
Appeal from special term, Yew York county. Reversed.
Action by Frank Work and others against George Parish Ogden and others to foreclose a lien on pledged securities. Dudley Tibbits, claiming to own such property, was made a defendant, and filed an answer. Tibbets appealed from an order denying a motion to set aside the judgment entered against him by default at the trial, and to allow him to defend.
"Plaintiffs, composing the firm of Work, Strong & Co., bankers and brokers of Yew York city, were correspondents and brokers for the firm of Ogden, Calder & Co., of Troy, and bought and sold stocks for the latter on the Yew York Stock Exchange. In order to secure plaintiffs for advances,'Ogden,, Calder & Co. kept with them certain securities. Ogden, Calder & Co. became insolvent, and made an assignment for creditors. Plaintiffs brought this suit to foreclose their lien on such securities. Certain third persons, claiming to be owners of certain of such pledged securities, etc., sued plaintiffs for conversion, and such suits were pending at the time of commencing the foreclosure suit. In the latter suit Tibbits, claiming to be the owner of certain of said securities, was made a defendant, and filed an answer. At the trial the court allowed the complaint to be amended so as to include a demand for judgment for the costs and counsel fees in the litigation against plaintiffs for conversion of the securities. Tibbits did not appear at the trial, and had no prior notice of the amendment. Judgment being entered against. Mm, he moved to set the same aside,'and to be allowed to defend; which motion being denied, he appealed to this court. For former renort, see 11 Y. Y. Supp. 616.
Hall & McGregor, (Esek Cowen, of counsel,) for appellant Tibbets. Smith & Wellington, for appellant Allen. Lamb & Osborne, for appellant Rexford. Marburg & Fox, (F. F. Marbury, of counsel,) for respondents.
We think the amendment of the complaint, whereby the plaintiffs were allowed to charge the defendants properly with the counsel fees, was unauthorized, so far as it affected the appellant. The defendant had appeared in the action, and interposed an answer. His counsel had advised him that he had no defense to the plaintiffs’ claim, as alleged in the complaint, and, although his counsel had intended to be present at the trial, in consequence of a mistake he was not present, and the case was tried and judgment entered as against this defendant by default. Yo amendment to the complaint that increased the burden upon defendant could be made without notice to the defendants who had appeared in the action, and the amendment in question was ordered by the court in the absence of that defendant, and without notice to him. His absence from the trial was, of course, a
p. 369
waiver of the right to object to the testimony, or to the granting of the relief asked for in the complaint, but was not a waiver of notice of motion to so amend the complaint that charges not set up in the complaint, and which were for money paid by plaintiffs after the complaint was served, were added to the amount which plaintiffs sought to have the court adjudge was a lien upon the defendant’s property. When the complaint was thus amended, this defendant had the right to plead to it, and that right could not be taken from him, and a judgment entered against him on the amended complaint, not served on him, and which he had no opportunity to answer. As the defendant was in default on the. trial, he cannot appeal from the judgment, and so have the question as to the propriety of the charge for legal services determined, and his only remedy was to make the motion to set aside the judgment. The order appealed from must be reversed, and the motion granted, and judgment vacated, with costs as to the appellant, unless the plaintiffs stipulate to deduct from the amount of the recovery the amount allowed for counsel fees, in which case order is affirmed, without costs.