Majority
p. 338Ann Cassidy v. Francis Boyland. (City Court of New York, Special Term, Filed October, 1888).
Headnote
Amendment by increasing amount claimed. .A plaintiff who serves a summons with notice that in case of default he-will take judgment for a specified sum, cannot without notice to the defendant, obtain an order increasing the amount claimed so as to justify the entry of a judgment for a larger amount.
Motion- to vacate order and judgment.
John H. Darrity, for motion; Henry Bishop, opposed.
The summons, which was served without a complaint, gave notice to the defendant that upon his default judgment would be taken against him for |277.66, with interest. The defendant allowed a default to be taken, and the plaintiff obtained an ex parte order increasing the amount claimed to 1410 and interest^ and entered judgment for this amount. The present application is to set aside
p. 339
said order and judgment. The court had power to grant the amendment ( 97 N. Y., 620 ; 13 Abb. Pr., 11 ), but it should have been upon notice to the defendant, that he might determine whether to defend the demand as enlarged or allow judgment to go against him therefor. See 5 How. Pr., 241 ; 11 Hun, 207 . The defendant having notice of the order now, it will be allowed to stand, but the judgment will be vacated and the defendant permitted to serve his answer to the complaint as amended, within six days after service of the order to be entered hereon. Ho costs.