Work v. Tibbits — 41 N.Y. St. Rep. 165

Majority

p. 165

Frank Work et al., Resp’ts, v. Dudley Tibbits, Impl’d., App’lt.

(Supreme Court, General Term, First Department,

Filed November 13, 1891.)

Headnote

Pleading—Amendment on tbial.

It is improper to allow an amendment of a complaint on the trial which sets forth additional charges, and claims an additional amount, in the absence of the defendant, and without notice to him. His absence from the trial is a waiver of the right to object to testimony or the granting of the relief asked for in the complaint, but is not a waiver of notice of motion to so amend.

Appeal from order denying motion to set aside judgment, and allow defendant to defend.

Esek Cowen, for app’lt; F. F. Marbury, for resp’ts.

We think the amendment of the complaint whereby the plaintiff was allowed to charge the defendant’s property 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 plaintiff’s claim as alleged in the complaint, and although his

p. 166

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.

Ho 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 this defendant and without notice to him. His absence from the trial was of course a 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 was for money paid by plaintiff after the complaint was served, were added to the amount which plaintiff sought to have the court adjudge to be 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 plaintiff stipulates to deduct from the amount of the recovery the amount allowed for counsel fees, in which case order is affirmed, without costs.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.