Sporza v. German Savings Bank — 119 A.D. 172

Majority

p. 172

Frank Sporza, as Committee of the Estate of Ida Jetta, Otherwise Known, etc., an Incompetent Person, Plaintiff, v. The German Savings Bank in the City of New York, Defendant.

First Department,

May 10, 1907.

Headnote

Incompetent person — order appointing committee of lunatic may be , amended to show alias of incompetent — constitutional law—section 2323a, Code Civil Procedure, not unconstitutional.

The court may amend an qrder appointing the committee of a lunatic to show the names under which she has been variously known.

Under the doctrine of- idem sonans absolute accuracy in spelling names is not required in legal documents or proceedings. All that is required is that the name as spelled, though different from the correct spelling, conveys to the ear when pronounced according to commonly accepted methods, a sound practically identical with the sound- of the correct name.

Section 2323a of the Code of Civil Procedure governing an application for a committee of an iúcompeteñt person' who is in a State institution, is not ' unconstitu ti onal.

Submission of a controversy upon áii agreed statement of facts.

James E. Brande, for the plaintiff.

John E. Donnelly, for the defendant.

This, case comes before the court on an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure: From these facts it appeared that on the 22d of Uovember, 1897, one Ida Jetter opened an account with the defendant by depositing with it a sum of money-; that she thereafter deposited other sums of money and made various withdrawals therefrom, and there is now standing to her crédit the sum of $1,309.72; that on the 20th of July, 1902, she married one Frank Sporza, and some time. thereafter —- just • when does not appear — she was duly committed to the Manhattan State Hospital as an insane person; that she was an inmate thereof on the 23d day of May, 1906, when an order was made at a Special \ Term of this court, upon the petition of the superintendent of such hospital, in a. proceeding,entitled “In tlie Matter of the Appointment of a Committee of the Estate of Ida Jetta, an alleged incompetent person, and an inmate of the Manhattan State Hospital,”

p. 173

appointing this plaintiff such committee and directing all persons having possession of her property to deliver the same to him upon demand and presentation of a certified copy of the order and a certificate of the clerk of the county of New York that the bond required had T^een duly filed by him. The committee having given the bond required, made, a demand that the defendant turn over to him the money standing to the credit of the incompetent, at the same time presenting a certified copy of the order appointing him a committee of her estate, together with a certificate of the clerk that. the bond required had been given. The defendant, refused to pay the money upon the ground that the name of the incompetent person was misspelled in the order, her name being spelled Jetta, while in the accounts on defendant’s books it was letter. (

No question is raised but what the proceedings leading up to the appointment of the plaintiff were in all respects regular, except that it is claimed that section 2323a of the Code of Civil Procedure, under which the appointment was made, is unconstitutional. After the defendant had refused to pay, upon an affidavit (showing that since the order was made appointing plaintiff committee it had been discovered that the person called Ida Jetta in the order had, prior thereto, married one Sporza, and that she, prior to such marriage, had also been known by the name of Ida letter), and a notice of motion duly given to all parties interested, an application was made to amend the order by inserting after the words “ Ida Jetta,” wherever the same appeared, the words “ Otherwise known as Ida letter, otherwise known as Ida Sporza,” with the same force and effect as if originally contained therein. The motion was granted and the order amended accordingly, the plaintiff, however, being . required to give a new bond, which he. did, and he then made another demand for the money held by the defendant, which was also refused, and the parties have submitted their controversy to this court.

The plaintiff contends that he is entitled to judgment for. the amount claimed, with costs, while the defendant contends that the ■ designation of the incompetent in the original order as Ida Jetta was a jurisdictional defect, and for that reason the order could not . thereafter be amended; also that section 2323a of the Code of Civil Procedure, under which the appointment was made, is unconstitutional and void.

p. 174

• The court had jurisdiction' to make the original order,.and, there- ■ fore, had the power, upon proper notice being given to the parties interested therein, and upon .sufficient facts-being shown, to amend it, to the end that such order might correctly express its intent and accomplish its purpose. Where a person is known by more than one name he may be sued or legal proceedings instituted against him by either, or the one by which he is generally- known. (Stuy vesant v. Weil, 167 N. Y. 421 .) Here, the incompetent was known by three names — Ida Jett a, Ida Jetter and Ida Sporza. The superintendent of the hospital, upon whose petition the plaintiff was. appointed, a. committee of her estate, knew her only by-the name of Ida' Jetta. He had a right under the statute to institute the proceedings, and in doing so called her by the only name which he knew, and described her as being aw inmate of the Manhattan State' Hospital. -This, obviously, was sufficient to give the court jurisdiction.. When it was. subsequently .discovered that' .she was ■ also known by the other names, one of which she had used when making the deposits with the defendant, it was proper for the court (due notices having been, given) to amend the order so-it should correctly describe her by the:different na,mes by which she was known. . It ivas proper to do-.this, but I-dti not’think necessary, because the name usedin the.original order was substantially the same,, so far as sound is concerned, as. the .-one under which the deposits-. were' made, which is all that is required. (People ex rel. Kenyon v. Sutherland, 81 N. Y. 1 .) The doctrine of idem.sonans applies. Under this doctrine strict or absolute accuracy in spelling names is not required in legal documents or proceedings. All that is required is that the name as spelled — though different from the correct spelling — conveys to the-ear -when pronounced according to commonly, accepted methods—ra sound practically identical with the sound of the correct name when pronounced.,. (21 Am. & ■ Eng. Ency. -of Law [2d ed.], 313.) There was, therefore, when the' ■ firstiand second order was presented, no justification whatever for the defendant’s refusing to turn over the money .standing to the Credit of the incompetent to. lier committee. '

■ bfor is there any force in defendant’s-Contention that section 2323a is: unconstitutional. A: discussion of the reasons why the section is constitutional would hardly be profitable in yiew of the

p. 175

fact that the question was squarely passed upon in the fourth department in Matter of Walker ( 57 App. Div. 1 ), and necessarily passed upon by this department in Trust Company of America v. State Safe Deposit Co. (109 id. 665).

It follows, therefore, that the" plaintiff is entitled to judgment against the defendant for the amount claimed, with costs. ,

Patterson, P. j., Houghton, Scott and Lambert, JJ., concurred.

Judgment ordered for plaintiff, with costs.

Cases cited

Stuyvesant v. Weil 167 N. Y. 421 N.Y. 1901-06-11 p. 174
People ex rel. Kenyon v. Sutherland 81 N. Y. 1 N.Y. 1880-04-06 p. 174