Durham v. Chapin

43 N.Y.S. 342 | N.Y. App. Div. | 1897

Landon, J.:

The Code of Civil Procedure (§ 543) provides that a pleading, amended as permitted, in section 542, which is the only section permitting an amendment as of course, must be served upon the attornev of the opposite party. The appellant had no attorney. The amended complaint was not served until about six weeks after the service of the original complaint, and, therefore, was not within the time permitted by section 543. Where the defendant has no attorney, there is no authority for serving an amended pleading upon him, except by order of the court, under section 727. The appellant, under the circumstances, did not waive the irregularity of service by failing to return the amended complaint. As the service upon her was not authorized, she should not be prejudiced by it, in the absence of facts in the nature of an estoppel.

We see no occasion to set aside the sale.

So much of the order as denies the motion to set aside the service of the amended complaint, and to strike out the judgment for deficiency, is reversed, with ten dollars costs and disbursements, and the motion in these' respects is granted. The order is affirmed, in other respects.

All concurred.

So much of the order as denies the motion to set aside the service of the amended complaint, and that refused to vacate the judgment for deficiency, reversed, with ten dollars costs and disbursements, and the motion in those respects granted ; in other respects the order appealed from affirmed.