People ex rel. Rumsey v. Woods — 4 N.Y. Super. Ct. 652

Majority

p. 652

The People, Ex rel. Rumsey, v. Woods and others.

Headnote

Where after a default, the plaintiff amends his complaint, (not in mere matter of form,) he must serve the same on the defendant. A judgment entered thereon without such service, is irregular.

June, 1849.

Motion by Woods to set aside the judgment entered against him in this suit, as irregular. The plaintiff served a summons and complaint on three defendants. Woods suffered the matter to go by default. The other two defendants demurred to the

p. 653

complaint. Some months afterwards, the plaintiffs amended their complaint, in a substantial matter, and not in mere form. No copy was served on Woods, or notice given to him. Subsequently the plaintiffs proceeded to assess their damages against Woods and the others, and perfected judgment.

J. Cook, for Woods.

C. C. Egan, for the plaintiffs.

after advising with Oakley, Ch. J., and Yanderpoel, J., said, the judgment is irregular and must be set aside. The practice contended for on behalf of the plaintiff, would be very unjust. It by no means follows, that because Woods did not defend the original complaint, that he was not desirous to answer to the complaint as amended. He should have been served with notice of the amendment so as to give him an opportunity to answer, if he were so advised.

Rule accordingly.