Work v. Tibbits — 68 N.Y. Sup. Ct. 566

Majority

p. 566

FRANK WORK and Others, Respondents, v. DUDLEY TIBBITS, Appellant, Impleaded with GEORGE PARISH OGDEN and Others.

Headnote

Amending pleadings on the trial without notice —not proper where the defendant answers and, does not appear on the trial — motion to set aside the judgment.

An action was brought to foreclose the rights of the owners in certain stocks, which had been pledged to a firm, of brokers. Tibbits, one of the defendants, appeared and answered. His counsel, who had advised Tibbits that he had no defense, had, nevertheless, intended to appear at the trial, but failed to do so. Upon the motion of the plaintiffs the complaint was amended on the trial so as to allow a recovery for counsel fees incurred by the plaintiffs in other actions

p. 567

-which, had resulted from the dealings between the plaintiffs and the defendants, other than Tibbits, and which had been paid by the plaintiffs since this action was begun.

Held, that the failure of the defendant Tibbits to appear at the trial did not authorize the court to increase his liability by amending- the complaint without notice to him, and that such amendment was void as to him.

That as he was in default, and, therefore, not entitled to appeal from the judgment., his remedy was by motion to set aside the judgment.

Appeal by tlie defendant Dudley Tibbits from an order, entered in tbe office of tlie clerk of tlie city and county of New York on. tlie 8tb day of June, 1891, denying bis motion to vacate a judgment, entered herein in said clerk’s office on tbe 8th day of May, 1891, or to amend and modify said judgment by striking out tlie sum of $4,538.75 allowed tbe plaintiffs for counsel, fees in certain litigations, or to open said judgment as to tbe defendant Tibbits, and allow said defendant to come in and defend said action as to said allowance of counsel fees, as tbe said order was resettled by an order entered in said clerk’s office on tbe 25th day of June, 1891.

Eseh Oowen, for tbe appellant.

F. F. Ma/rbury, for tbe respondents.

We think tbe amendment of tbe complaint whereby the plaintiffs were allowed to charge tbe defendants’ property with tbe counsel fees was unauthorized so far as it affected tbe appellant.

Tbe defendant bad appeared in tlie action and interposed an answer. His counsel bad advised him that be bad no defense to tbe plaintiffs’ claim as alleged in the complaint, and although his counsel bad intended to be present at tbe trial; in consequence-of a mistake be was not present, and tbe case was tried and judgment entered as against this defendant by default.

No amendment to the complaint that increased tbe burden upon defendant could be made without notice to the defendants who bad appeared in tbe action, and tbe amendment in question was ordered by tbe court in tbe absence of this defendant, and without notice to him. His absence from tbe trial was, of course, a waiver of the right to object to tbe testimony or to tbe granting of tbe relief asked for in tbe complaint, but was not a waiver of notice of a motion to so amend the complaint^ that charges not set up in the complaint,

p. 568

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 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 & 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 the order is affirmed, without costs.

Present — Yan Brunt, P. J., Daniels and Ingraham, JJ.

Order modified as expressed in opinion, and, as modified, affirmed, without costs.