Majority
p. 309MULDOON v. PIERZ. N. Y. Supreme Court, First Department; Chambers, December, 1876.
Headnote
Supplementary Proceedings.—Contempt.—Misnomer.A defendant, sued by a wrong name, does not, by failing to appear in the action, waive his right to object to the misnomer, even after judgment and execution, and will not be considered in contempt for failing to comply with an order for examination as a judgment debtor, supplementary to execution, in which his name is erroneously stated, although he is the real person intended.
Motion to punish Anthony Pirz for not obeying an order served on him for the examination of August Pierz, a judgment debtor.
The plaintiffs, James Muldoon and John Lynch, obtained a judgment by default, defendant not having appeared, against August Pierz, in the New York supreme court, in the city of New York, in December, 1875, for $256.55, and a transcript thereof was filed in Queens county, where the defendant resided, and an execution issued, which was returned unsatisfied. On November 15, 1876, an order was obtained from Judge Lawrence for the examination of the judgment debtor, August Pierz, before a referee in Queens county. The person making the affidavit ■ of service states therein that “ he served upon August Pierz, the defendant herein (who said his name was Anthony) personally, copies of the within affidavit and order, by leaving the same with the said August Pierz (Anthony) said defendant herein, and at the same time and place exhibiting to him the within originals. And that he knew the said August Pierz (Anthony) to be the individual described in said affidavit and order.” As the defendant did not appear before the referee on the
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return day, Ms default was taken. Thereupon an order to show cause why defendant should not be declared in contempt, and an attachment issue against him was made. One of the affidavits upon which the order to show cause was obtained stated, “That the deponent was a book-keeper for the plaintiffs when the defendant contracted the debt for wMch tMs action was commenced; that he saw defendant on two occasions before the commencement of this action, for the purpose of collecting the afore-mentioned debt; that he served upon said defendant the summons and complaint herein, without objection from him as to any misnomer; that he served upon said defendant the order for examination in supplementary proceedings ; that he knows the person recited in the foregoing proceedings to be the one identical person named in this action as the defendant, and deponent knows the aforementioned person so served to be the judgment debtor herein.”
F. B. Churchill, for the motion.
F. W. Angel, opposed,—Claimed:
I. That defendant had not waived Ms right to appear, even after judgment and execution (Farnham v. Hildreth, 32 Barb. 277 , 281; Moulton v. de ma Carty, 6 Robt. 470).
H. That service of a summons upon a party by a wrong name, did not give the court jurisdiction over Ms person, and Ms appearance could not be compelled, nor jurisdiction be acquired by amendments after service (I b.; Hoffman v. Fish, 18 Abb. Pr. 76 ; Cole v. Hindson, 6 Term, 234; Griswold v. Sedgwick, 6 Cow. 456 ).
The judgment was obtained against August Pierz, and the order for the examination on proceedings supplementary to execution was served on Anthony Pirz. The order required the debtor to
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appear before a referee, to be examined in Queens county, and Anthony Pirz having failed to appear, the motion is to punish him for contempt. In Farnham v. Hildreth ( 32 Barb. 277 ) it was held that a judgment and execution against Freeman Hildredth, will not authorize a sale of the property of Truman Hildreth, although the latter may be the individual intended; that the judgment and execution must describe the party whose property is sought to be taken, and it is not enough that the right man is made to pay a debt. Also, that where a defendant sued by a wrong name fails to appear in the action, he does not waive his right to object to the misnomer, after judgment and execution. This case seems decisive of this motion. Even if Anthony was the real person intended, he cannot be considered as in contempt for failing to comply with an order directed to August. This case differs from the case of Breen, which I decided last March. There Breen had appeared and defended the action; and I held that, under the circumstances, he could not complain that he was arrested on an execution in which his name was erroneously stated. Here the defendant never has appeared in response to or in any •way recognized or admitted the validity of the order.
The motion to punish Anthony Pirz for contempt, is therefore denied, but without costs.
There was no appeal.
Cases cited
- Farnham v. Hildreth 32 Barb. 277 at 281 p. 310, p. 311
- Hoffman v. Fish 18 Abb. Pr. 76 p. 310
- Griswold v. Sedgwick 6 Cow. 456 p. 310