Luckey v. Mockridge

98 N.Y.S. 335 | N.Y. App. Div. | 1906

Ingraham, J.:

It appeared that this action was originally brought against the defendants Frank H. Mockridge and Grace A. Mockridge to set aside a transfer of real estate by the defendant Frank H.' Mock-ridge to his wife, the defendant Grace A. Mockridge, alleged to be fraudulent as to creditors. The summons and complaint was served upon these two defendants who appeared, and on the 1st of February, 1905, the defendants severally answered the complaint and served their amended answer to the complaint on February 21, 1905, Subsequently the plaintiff; ascertained that the defendant Grace A. Mockridge had executed a mortgage upon the real property in question to secure a bond, for the payment of $300 to her attorneys, of which fact the plaintiff’s attorneys were ignorant when the Original complaint was served. The plaintiff thereupon, upon an affidavit setting forth these facts, including the appearance of the defendants in the action, obtained, on March 13, 1905, an ex parte order from the Special Term allowing them to amend the summons by adding as- parties defendant to the action the mortgagees, and by amending the complaint alleging that this mortgage was also fraudulent and void as against creditors, and amending the prayer for'relief'by asking that this mortgage be so held to be void and .that the mortgagees be required to discharge it of record. This order having been obtained,- the defendant moved to vacate it upon the ground that-it was obtained ex parte and without notice to them. The plaintiff then made a motion returnable ' on the same day on which the motion made by the. defendants to vacate this ■ex parte order was returnable for an order “ denying the motion to be made herein on (the) 27th day of March, 1905, by Frank H". Mockridge and Grace A. Mockridge, defendants, for the purpose of securing an order herein vacating and setting aside the said order made herein March 13th, 1905, providing for and authorizing the amendment of the summons and complaint herein and as therein provided, and that the undersigned will also, on-said papers and proceedings herein, move this court for an order herein' affirming and confirming nunc fro tune the, order herein of March 13th, 1905, and in all respects anthorizing and allowing the amendment of the summons herein by the addition of the names of Herbert AHeyn and George B. Covington as two "additional parties defendant, and authorizing and allowing the issuance herein of a supplemental summons to said Herbert A. Heyn and George B. Covington as two additional parties defendant herein, and amending the complaint herein by the addition in tlie caption of said cause of the additional names as two parties defendant herein of said Herbert A. Heyn arid George. B. Covington, and by the amendment off said complaint filed herein December 12th, 1901, by the addition thereto of the allegátions provided for’in the said order made herein March 13th, 1905.”

These two motions, one to vacate the ex parte order,, andithe. other to affirm, and confirm nunc pro tunc the ex parte order, coming on to be heard, the court denied the motion to vacate the ex parte order and granted the plaintiff’s motion to affirm and confirm nunc pro tunc the said ex parte order and allowing the amendment, and from that order the defendants appeal.

It is quite clear that the ex parte order was irregular. The defendants had appeared in the action, had filed and served their answers to the complaint, and no order amending the summons or the complaint could be granted except upon notice to the defendants who had thus appeared. This ex parte order was also irregular, in that there was not annexed to it a copy of the amended pleading, leave to serve which was applied for, and if this motion had been on notice it should have been denied on that ground. We know of no' practice which justifies the court in affirming and confirming, nunc pro tunc, such an irregular order. The pleading which this ex parte order authorized was a pleading unknown in the Code. There is no such pleading as an amended and supplemental pleading. (Horowitz v. Goodman, 112 App. Div. 13.) In this case it is quite probable that the court would, on proper application, have allowed the plaintiff to amend the summons and complaint by making these mortgagees defendants, and inserting the proper allegation to show that the mortgages were obtained from the fraudulent transferee of the’property after notice that the transfer was in fraud of the plaintiff’s creditors; but that would be simply an amended summons and complaint, but it was quite irregular to obtain an ex pa/rte order without notice to the defendants fiffio had appeared in the action allowing the plaintiff to serve such a complaint.

We think, therefore, that as the practice adopted was irregular the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, without prejudice, however, to an application by the plaintiff, upon proper notice, for leave to amend the summons and to serve an amended complaint.

McLaughlin, Laughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to new application as stated in opinion. Order filed.