Becker v. Woodcock — 136 A.D. 589

Majority

p. 589

Frances A. Becker, Appellant, v. Daniel Woodcock, Doing Business under the Name of Daniel Woodcock and Company, as Attorney in Fact for the New York Insurance Association of New York, Respondent, Impleaded with Mary J. Zoller and Others, as Administrators, etc., of Jacob Zoller, Deceased.

First Department,

February 4, 1910.

Headnote

Practice — amendment of papers -under section 723 of the Code of Civil Procedure — correction to name persons underwriting insurance policy.

Where a plaintiff suing on a policy of Are insurance complied with a provision-thereof by bringing his action against an. individual as attorney in fact of a certain association of underwriters, and after judgment and supplementary proceedings against the agent discovered that all the underwriters forming the unincorporated association did not underwrite every policy, but only particular policies as their agent might arrange it, the plaintiff by virtue of section 723 of the Code of Civil Procedure is entitled to amend the papers in the action by striking out the name of the association and substituting therefor tile names of the individuals who underwrote his particular policy.

Section 723 of the Code of Civil Procedure does not authorize an amendment which effects a substitution of parties, but the name of a defendant may he corrected.

p. 590

Appeal by the plaintiff, Frances A. Becker, from an order of the Supreme Court, made at, the New York.Special' Term and entered in the office of the clerk, of the. county of New Yobk on the 2d day of December, 1909, as resettled by an order entered on the lOtli day of December,. 1909¿ denying the plaintiff’s motion that the defendant be required to pay over certain money in his! hands or, in the alternative, that the judgment and all pleadings land pro"cebdings in the'' action be amended by correcting an error in the name of the defendant as provided for in, section 723 of the Code of Civil Procedure.

Isham Henderson, for the appellant.

Edward Cahn, for the respondent.

A policy of fire insurance was issued to the plaintiff by a;n.association styling itself “ The New-York Insurance .Association of New York,” acting through Daniel Woodcock who styled himsélf “Daniel Woodcock and Company, General Managers and Attorneys in Fact.’ The policy contained this provision: “ No action shall be brought to enforce the provisions of this policy except; against the general managers as attorneys in fact, and representing all of the underwriters, and each of the underwriters hereby agrees jto abide the result, of any suit so brought as fixing his . individual! responsibility' hereunder, and any such action shall be brought in the Supreme. Court, County .of New York.” A loss occurred .which the insurers refused to adjust, with the result that a, suit was brought. Pursuant to the terms of the policy, the summons and ¡ complaint were-served on Daniel Woodcock, and the defendant was styled therein “Daniel' Woodcock, doing "business under the name of Daniel Woodcock and Company,, as Attorney" in Fact for the New .York Insurance Association of New York.” An answer was interposed, and the plaintiff finally after a "trial of the action obtained a .judgment. Not being ablé to'obtain satisfaction of the judgment, the plaintiff instituted proceedings su.pplementáry to- execution and examined Daniel Woodcock. ' On’that examination it. appeared that Daniel Woodcock was the attorney in fa!ct of an association of

p. 591

underwriters styling themselves “The Hew York Insurance Association of Hew York,” an unincorporated association composed of individual underwriters; and that he, as general manager of such association, had funds in his hands which, however, he claimed belonged, not to the association, but to the individual members. It also appeared that all of the individual underwriters, composing the association, did not underwrite each policy issued by the general manager, some underwriting one, some another, apparently as the general manager might arrange it. The plaintiff now wishes to correct the defendant’s name as it appears in all of the papers in the action by striking out the words “Hew York Insurance Association of Hew York,” and inserting therein the names of the individuals composing such association who underwrote the plaintiff’s policy.

Section 723 of the Code of Civil Procedure is broad enougli to authorize the correction required in the furtherance of justice. So far as material it is: “The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting an allegation material to the case; or, where the amendment does not change substantially the claim or defence, by conforming the pleading or other proceedings to the facts proved.” This is not a case of the change of parties which is, of course, unauthorized. (New York State Monitor Milk Pan Assn. v. Rem. Ag. Works, 89 N. Y. 22 ; Licausi v. Ashworth, 78 App. Div. 486 . (While the Code authorizes an amendment by adding or striking out the name of a person as a party that does not authorize a substitution of parties. But - in this case the right party was sued. The contract required the action to be brought against Daniel Woodcock, as attorney in fact. He appeared and defended as such. By no possibility could he have been deceived as to the nature of the action or the real principals whom the plaintiff sought to charge. A case is plainly made, therefore, for the amendment asked for, which is the correction of the name of a defendant, instead of the substitution of a different defendant. (Boyd v. U. S. Mortgage & T. Co., 94 App. Div. 413 ;

p. 592

Ward v. Terry & Tench Const. Co., 118 id. 80; affd., 189 N. Y. 542 .)

The order should be reversed, with ten dollars costs and disbursements, and the motion to amend granted^ with costs. ’ ,

Ingraham, P. J., Laughlin,' Clarice and Scott, ffJr, concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.. '

Cases cited

New York State Monitor Milk Pan Ass'n v. Remington Agricultural Works 89 N. Y. 22 N.Y. 1882-04-18 p. 591
Boyd v. United States Mortgage & Trust Co. 94 App. Div. 413 N.Y. App. Div. 1904-05-20 p. 591
Ward v. Terry & Tench Construction Co. 189 N. Y. 542 N.Y. 1907-10-15 p. 592