Smith v. Helbraun

Clare J. Hoyt, J.

Plaintiff’s motion for an order vacating a judgment which dismissed two causes of action of the complaint is granted.

The order of March 15, 1963 which dismissed the second and third causes of action gave leave to plaintiff to serve an amended complaint with respect to the third cause of action provided said amended complaint was served within 20 days after service of a copy of the order of dismissal with notice of entry thereof. Defendants’ attorneys mailed a copy of the order with notice of entry thereon to plaintiff’s attorney on March 18, 1963. Since service of the order was made by mail, three days were added to the 20 days (Civ. Prac. Act, § 164) giving plaintiff until April 11, 1963 to serve his amended complaint. On April 9, 1963, defendants’ attorneys procured an ex parte judgment dismissing the second and third causes of action of plaintiff’s complaint.

In the absence of a default no ex parte judgment of dismissal could lawfully be obtained against the plaintiff. Plaintiff was not in default on April 9, 1963. His amended complaint was served by mail on April 10,1963 one day before his time to serve an amended complaint expired.

Defendants contend that the three-day extension of time for mailing provided for in section 164 of the Civil Practice Act 44 Where it is prescribed by law that a notice must be given ’ ’ ■ (emphasis added) applies only to notices fixed by statute and not to a notice such as here imposed by virtue of the order of this court permitting service of an amended complaint upon the dismissal of the original. This position is untenable. The section also provides for the extension of time when 4 4 the adverse party has a specified time after notice or service within which to do an act ”.

Submit order on notice vacating the ex parte, judgment, providing for service of a copy of the amended complaint with service of the order hereon and permitting service of an amended answer or a motion directed to the amended complaint within 20 days thereafter.