Meyer v. North River Construction Co.

The Code or practice does not contemplate that judgment can be rendered, except upon pleadings duly served, after issue has been tried, or after default in demurring or answering. ' The issue made by the demurrer to the complaint did not involve a determination of the claim which, by the order appealed from, whs inserted in the complaint as a part of the relief asked. In substance, judgment has been ordered against the defendants upon affidavit.

It is suggested that the court had power to amend, and that defendants, by not asking leave to answer, have voluntarily abandoned the right to contest. The nature of the application, however, was to have leave to amend absolutely nunc pro tunc, without being obliged to serve an amended complaint. This should not have been granted.

The order should be reversed, with $10 costs of the appeal, with disbursements to be taxed, and the motion below should be denied, with $10 costs.