Hulbert Bros. & Co. v. Hohman — 22 Misc. 248

Majority

p. 248

Hulbert Brothers & Co., Plaintiff, v. John T. Hohman, Defendant.

(Supreme Court, Onondaga Special Term,

January, 1898.)

Headnote

Pleading — Amendment —• Substitution of its receiver for a company — Inadvertence.

The court has power, under Code of Civil Procedure, section 723, to • amend the summons and complaint in an action, begun in the name ' of a company, by substituting its receiver, in whom the cause of action was vested 'when the action was begun, as the substitution .does ixot bring in a different party and as a mistake, caused by mere inadvertence, should be remedied.

Motioh to amend summons and complaint herein by making Frederick P. Forster-as receiver of Hulbert Brothers & Company instead of said Hulbert Brothers jfc Company, plaintiff.

Irving G. Hubbs, for motion.

J. R. Shea, opposed.

It seems that at the time this action was commenced the above-named Forster had been appointed receiver of Halbert Brothers & Company and, therefore, the cause of action was vested in him. Through inadvertence the summons and complaint were entitled in the name of the company as plaintiff, and this application is now made to change the name of the plaintiff accordingly.

I think it is within the power of the court to grant the application and that the amendment should be allowed. Code, § 723; Heckemann v. Young, 18 Abb. N. C. 196 ; Kaplan v. N. Y. Biscuit Co., 5 App. Div. 60 .

As was suggested in Dean v. Gilbert, 92 Hun, 427 , the amendment may be regarded almost a's a correction of the name of the plaintiff rather than the substitution of an entirely distinct and different party from that named and referred to in the allegations of the complaint.

The suggestion made in opposition to the motion that it does not sufficiently appear that the receiver is a party to this application or represented thereon by plaintiff’s counsel is answered by the fact amongst others that part of the moving papers are the proposed amended summons and complaint duly verified by Hr. Hubbs as attorney for the receiver and in which he specifically states that he is such attorney.

The motion is, therefore, granted, with $10 costs to abide event.

Motion granted, with $10 costs to abide event.