Smith v. Fleischman

45 N.Y.S. 553 | N.Y. App. Div. | 1897

Rumsey, J.:

The demand-for. relief in the notice, of motion to vacate the clerk’s certificate was for an order to vacate “ the clerk’s certificate contained in said appeal book, and ■ for such other or further relief, as to the court may seem, just and ’ proper.” The defendant did not appear upon the hearing of the. motion, and the order entered upon his: default vacated the clerk’s certificate, with ten dollars costs to the plaintiff against the defendant Fleisclnnan. This order was irregular. Where the default of the party has been taken under a notice of motion served upon him, the moving party is entitled to no greater relief than that asked for in his notice, and unless it is stated in the notice that he will ask for costs he is not entitled to have them, where the motion is granted by default. Costs cannot be granted upon a default under a. notice of motion which asks for other and further relief. (Crippen v. Ingersoll, 10 Wend. 603; Northrop v. Van Dusen, 5 How. Pr. 134.)

The motion, therefore, to resettle the order granted upon default should have been granted for the reason stated.

The order denying that motion, therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Van Brunt, P. J., Williams, Patterson and Parker, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.