Fuller Buggy Company, Respondent, v. Adelbert Waldron and Charles E. Cudney, Defendants, Impleaded with Joseph Ramsey, Appellant

Fuller Buggy Company, Respondent, v. Adelbert Waldron and Charles E. Cudney, Defendants, Impleaded with Joseph Ramsey, Appellant. Third Department, May 18, 1906. Practice — when defendant not entitled to have judgment by default opened—when costs may be imposed on opening such judgment as favor. A defendant, against whom a'judgment has been taken by default, is not entitled to have the judgment opened on the ground that after his default and prior to a severance of the action an amended complaint was served upon the defendants as to whom the action was severed, but not upon him, if the original complaint stated a good cause of action against him. But when the judgment has in fact been opened on the condition that the defendant pay costs and the plaintiff has not appealed therefrom, the order for costs will be affirmed although there was no right to have the judgment opened, for in such case the opening of the judgment stands as a mere favor to which the court may attach conditions. Appeal by the defendant, Jo'seph,Ramsey, from that part of an order of the Supreme Court, made at the. Saratoga Special Term and entered in the office of the clerk of the county of Warren on the 13th day of March, 1906, imposing upon the said defendant the payment of costs as a condition, upon the granting of his motion to vacate' a judgment taken against him by default. James H. Bain, for the appellant. N. B. Spalding, for the respondent. [MAJORITY — Smith J.:] Smith J.: The defendant Ramsey was served with a summons and'complaint. He made default in appearing. The action was severed, so; that the action against him and the'defendant Cudney proceeded separately from the action against defendant Waldron. Judgment Was rendered by default- against him. This judgment he now seeks ' to open. The ground of his motion to open the. judgment is that three days prior to the" severance of theuction, and after his default, the plaintiff served upon defendant Waldron an amended complaint/ . The judgment, however, taken against xthe defendant Ramsey by default was upon the original complaint, which stated a good cause of action against him. If the plaintiff had-waited three days longer before serving his amended complaint -upon the- defendant Waldron ■ the action would have been, severed and there could then have been no claim that the judgment was not in all respects regular as against the defendant Ramsey. We „ cannot see that the rights of the defendant Ramsey havv been in any-way. prejudiced by the service of this amended, complaint upon the defendant Waldron three days prior to the severance of the action. If the amendment had been necessary for the statement of a complete causé of action against the defendant Ramsey, it. is undoubtedly true that the'amended complaint mhst have been served upon the defendant Ramsey. Inasmuch, however, as a good cause of action was stated against the defendant Ramsey in the original complaint, the allegations of which were admitted by Ramsey’s default, wé can' see no object in 'serving the amended complaint upon him, or what right he can claim to be s,erVed therewith. The defendant Ramsey, therefore, " was not entitled to have this judgment, opened iipon the ground that the amended complaint had not been served upon him.. x The plaintiff, however, has not appealed from the opening of the judgment upon the payment by the defendant Ramsey of -the costs entered in the judgment and of ten dollars costs of the motion with which he has been charged, hi or does the plaintiff question by appeal the part of the order requiring the service upon the defendant Ramsey of the amended complaint. Without the legal right to have the judgment opened, the order opening the same is simply a favor to which might lawfully be attached such terms as the requirement to pay costs. The order should, therefore, be affirméd, with ten dollars costs and disbursements. All concurred. Order affirmed, with ten dollars costs and disbursements.