Weil v. New York Central Railroad

Headnote

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

Weil v. N. Y. Central R. R. Co., 203 App. Div. 840 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 28, 1922, which affirmed an order of Special Term denying a motion to amend' the title of this action.

The following questions were certified: “ 1. Does the service on or before February 28, 1922, of a summons with notice in an action based on causes of action arising during federal control of the railroads, upon a person designated by section No. 206-B of the Transportation

Act of 1920, as a person to be served with process in such actions, in which summons the carrier and not the agent designated by the president under section No. 206-A of the Transportation Act of 1920, is named as defendant, constitute the bringing of an action against said agent or his principal within the meaning of section No. 206 of the Transportation Act of 1920?

“ 2. Would the substitution of James C. Davis, director-general of railroads, agent, for the New York Central Railroad Company as the defendant designated, introduce a new party into the action, who would have to be served with an amended summons, or would such substitution merely correct a misnomer of the party defendant?

“ 3. If James C. Davis is a new party to the action, does section 192 of the Civil Practice Act authorize his substitution for the defendant named and does such substitution relate back to the time of the service of the summons upon the original defendant?

“ 4. Did the general appearance of the attorney for the New York Central Railroad Company on October 15, 1921, on behalf of the defendant constitute an appearance for James C. Davis, director-general of railroads, agent; and did such appearance in this action after the service of the summons on a person designated in section 206-B of the Transportation Act of 1920, on whom due service on James C. Davis, director-general of railroads, agent, could be made, constitute the bringing of a suit against said agent within the meaning of section 206 of the Transportation Act of 1920? ”