Lavigne v. St. Lawrence County Savings Bank 282 A.D. 978

Appeal by plaintiff from an order of the Supreme Court at Special Term, entered in the office of the Clerk of the County of St. Lawrence on January 31, 1953, whieh opened the default of the defendant and directed the plaintiff to serve an amended complaint. The action is brought to recover for the alleged refusal of defendant to honor plaintiff’s withdrawal check in the sum of $500. The complaint alleges that plaintiff “has a balance or should have a balance ”, and then in effect alleges in the same paragraph an action in contract for refusal to pay from money on deposit and an action in negligence for unauthorized withdrawal. The order appealed from merely opens a technical default of short duration and directs that the amended complaint be made more definite and certain and the causes of action separately stated. The order is discretionary, and that was no abuse of discretion. Order unanimously affirmed, with $10 costs. Present — • Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ.