Heckemann v. Young — 18 Abb. N. Cas. 196

Majority

p. 196

HECKEMANN v. YOUNG.

N. Y. Supreme Court, First District, Chambers ;

January, 1887.

Headnote

1. Amendment of summons and complaint; name of plaintiff.] Where an action for goods sold to the defendants by a party carrying on busi- , ness in the name of a deceased person is begun by mistake in the name of the latter, the court has power to allow an amendment of the title of the summons and complaint so as to give the name of the seller, “trading under the name of” the deceased.

The rule prohibiting an amendment by the insertion of the name of a party other than the one who brought the action, does not apply to preclude an amendment to correct an error so that the name of the person in whose behalf the action was brought will be properly described.

Motion for leave to amend summons and complaint.

This action was brought by Johanes Heckemann agairist David B. Young and George W. Adams, to recover for goods sold by a business house in Hamburg, Germany. The defendants appeared separately, and defendant Young answered setting up that the goods were sold upon a credit that had not expired when the action was begun.'

The letters to the plaintiff’s attorney, containing instructions to bring suit, were all signed “ Joh. Heckemann,” and the statements of the account, etc., were all in the name of Jo-'

p. 197

Lanes Heckemann. But upon taking the deposition de bene esse of the plaintiff’s general agent upon his arrival here after the suit was begun, plaintiff’s attorney for the first time learned that Johanes Heckemann had. been dead upwards of thirty years, and that his widow, Pauline Heckemann, had carried on his business ever since.

Upon defendant Adams’ motion, the judgment by default which had been entered against him, was vacated, upon the ground that the plaintiff was a dead person ; and upon plaintiff’s motion, an amendment • like that sought in this motion was made upon notice to the defendant Adams.

Plaintiff now moved upon affidavits setting up the facts, and on notice to the defendant Young, for leave to amend the summons and complaint by inserting in the title thereof before the words “ Johanes Heckemann,” the words “ Pauline Heckemann, trading under the name of.”

Gilbert R. Hawes for the plaintiff and the motion.

A. Edward Woodruff, for the defendant Young, opposed.

The court has no power to allow the amendment. N. Y. S. M. Milk Pan Assn. v. Remington Agric. Works, 89 N. Y, 22 ; Shaw v. Cock, 78 N. Y., 194 ; Wright v. Storms, 3 Code Rep., 138 ; Coffing v. Tripp, 1 How. Pr., 115 ; Davis v. Mayer, &c., of N. Y., 14 N. Y., 506 , 527.

In N. Y. S. M. Milk Pan Assoc. v. Remington Agric. Works (supra) the court say: “ Section 723 of the Code of Civil Procedure does not cover any such case. While full authority is conferred for adding or striking out the name of a person or a party, or correcting a mistake in such name, it does not sanction an entire change of name of the defendant-by the substitution of another or entirely different defendants.” This principle applies to the substitution of another party plaintiff as well as a party defendant. See also Bassett v. Fish, 75 N. Y., 303 .

In John Churchill Coifing, President of the Salisbury Iron

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Company, v. Tripp, 1 How. Pr., 115 , on a motion to strike out the words “John Churchill Coffing, president of the,” Beardsley, J., “ thought there could no precedent be found for allowing the plaintiff to amend by substantially changing a party to the suit under such circumstances. The proper way for plaintiff would be, to discontinue the suit and commence anew.” And the court denied a motion to amend by continuing the action in the name óf the Salisbury Iron Company.

I think the amendment moved for should be granted. The cases cited by the counsel for the defendant, from the Court of Appeals reports, were cases in which the action was brought by one party, and the amendment sought to be made was the insertion of the name of an entirely different party, both parties being living persons. In this case the affidavits show that Pauline Heckemann, who was the party to whom it is alleged the indebtedness of the defendants was incurred, had been carrying on business in Hamburg for many years past under the name of her deceased husband, Johanes Heckemann. She was the party in whose name the action was intended to be brought, and for whose benefit the action actually (was brought. If the amendment is granted, the name of the person in whose behalf the action was brought will be proper1 • described.

I shall therefore grant the motion upon condition that tL. plaintiff pay the costs before notice of trial, and costs of motion.