Fischer v. Wabash Railway Co.

Headnote

Practice — railroads — when motion to substitute director-general of railroads as party defendant in action against railroad companies properly denied.

Fischer v. Wabash Ry. Co., 203 App. Div. 840 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial depart

ment, entered October 13, 1922, which affirmed an order of Special Term denying a motion for substitution of parties defendant.

The following questions were, certified: “ 1. Does the service on or before February 28, 1922, of a summons and complaint, wherein two railroad companies are named as the defendants, setting forth a cause of action arising out óf the operation of the respective railroads of said companies during the period of federal control, upon the respective officials of said companies upon whom process against said companies may properly be served, which officials are also the persons designated by section 206(b) of the Transportation Act of 1920 as the persons to be served with process in actions arising out of federal control brought against the agent specified in section 206(a) of the Transportation Act of 1920, constitute the bringing of an action against said agent although said agent is not named as a defendant in said summons and complaint?

“ 2. Would the substitution of James C. Davis, as the agent designated by the president pursuant to section 206 of the Transportation Act, 1920, in place of the two railroad companies named as sole defendants in said summons and complaint, bring a new party defendant into the action or would such substitution merely correct a misnomer of the party defendant?

“ 3. If the substitution of James C. Davis, as agent, designated by the president pursuant to section 206(a) of the Transportation Act, 1920, would result in bringing in a new party defendant in the action can such substitution be made after February 28, 1922, the last day fixed by section 206(a) of the Transportation Act for commencing an action against the agent?

• “ 4. If such substitution brings a new party into the action does section 192 of the Civil Practice Act authorize the substitution of said new party for the defendants named, and does such substitution relate back to the time of the service of the summons and complaint upon the defendants originally named?

“ 5. Should the motion of the plaintiff for leave to sub

stitute Janies C. Davis, director-general of railroads, as defendant herein in the name and place of the defendants herein and to amend the summons and complaint and all the proceedings heretofore had herein so as to set forth as defendant James C. Davis, director-general of railroads, and to serve an amended, summons and complaint, be granted? ”