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Luckey v. Mockridge

98 N.Y.S. 337 Court N.Y. App. Div. Decision date 1906-04-06 English

Judges Argued before McLAUGHLIÑ, INGRAHAM, LAUGHLIN, CLARKE, and HOÜGHTON, JJ.; All concur.

Delivered by INGRAHAM, J.

Contents

Majority

p. 337
(112 App. Div. 908)
LUCKEY v. MOCKRIDGE et al.
(Supreme Court, Appellate Division, First Department.
April 6, 1906.)

Headnote

Appeal from Special Term, New York County.
Action by David B. Luckey, as trustee in bankruptcy of the estate of Frank N. Mockridge, against ;Grace A. Mockridge and others. • From an order denying a motion to vacate an ex parte order allowing plaintiff to serve an amended, summons and a supplemental and amended complaint, defendants, appeal.
Reversed.
Argued before McLAUGHLIÑ, INGRAHAM, LAUGHLIN, CLARKE, and HOÜGHTON, JJ.
Bernard G. Hevn, for 'appellants.
Horace E. Parker, for respondent.

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, decided herewith ( 98 N. Y. Supp. 335 ), 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 $10 costs and disbursements, and the motion granted, with $10 ‘costs.-

All concur.