Hookey v. Greenstein , 104 N.Y.S. 621 ( 1907 )

Ingraham, J.

(dissenting):

I concur with Mr. Justice Clarke as to. so much of the order as refused to vacate the order setting aside the judgment and allowing an amendment to the complaint, but I do not think the court had'. power to enter a judgment upon the amended complaint without notice to the defendants in the action who were in default and who had no notice of or opportunity to be- heard upon a-judgment based upon this amendment. Section 1207 of the Code of Civil Procedure provides that where there is no answer, the judgment shall not be more favorable to the plaintiff, than -that, demanded in the complaint.” It was here sought to foreclose a second mortgage.

There was no question of a surplus to which the plaintiff, if lie . . established the validity of liis mortgage, could be entitled, and the mortgagor had defended by alleging that the mortgage sought to be. enforced was void on account of usury. When plaintiff saw fit to amend the complaint, so as to a'sk to have a direct adjudication as to the surplus which had been realized and which was in court, I think tlie defendants who had not consented to the amendment and were in default should have had notice of the amendment and an opportunity to defend against a demand for a judgment which was essentially different from that asked for by the original complaint. I think the construction to be given .to this section' of the Code of Civil Procedure requires that a summons and complaint, when it is so amended as to ask for substantially, different relief from that demanded in the original complaint — and which was not then in the contemplation of any of' the parties'— should be served upon those defendants who have not appeared before a j,udg-. rae'nt can be entered which grants to a plaintiff the relíéf demanded by the amended complaint, and the court cannot deny a defendant that right by considering .that the judgment newly demanded would accomplish no greater results than would have been accomplished by the judgment as originally demanded.

Order affirmed, with ten dollars costs and disbursements.