Majority
p. 8Riley et al. v. Stern et al. (City Court of New York, Special Term. November 12, 1889.)
Headnote
Parties—Misjoinder of Defendants—Substitution.■Under Code Civil Proo. N. Y. § 723, providing that the court may strike out parties, and add others, where a person is improperly joined in the complaint with others as a defendant, the court may strike out the name of such person, and substitute one who should have been made a defendant.
At chambers. Action by W. H. Riley and Adolph Friedlieb against Solomon Stern, Moses Stern,'and Henry Stern, as constituting the Arm of S. & M. Stern. The answer of the two first-named defendants denied that Henry Stern was at any time a member of the firm, and alleged the firm was composed of said two first-named defendants and one Bernard Pasternak. Plaintiffs now move to have the name of Bernard Pasternak substituted for Henry Stern.
8. F. Kneeland, for plaintiffs. L. 8. Marx and A. H. Barick, for defendants.
The court may strike out parties, and add others. Code, § 723. The only limitation on the power is that a sole defendant cannot be stricken out, and another substituted in his place. Spence v. Griswold, 7 N. Y. Supp. 145 ; Davis v. Mayor, 14 N. Y. 506 , 527; New York, etc., Assn. v. Remington, etc., Works, 89 N. Y. 22 . Motion to strike out the names of Henry Stern granted on payment to his attorney of $10 costs, and application to join the name of Bernard Pasternak with those of the two remaining defendants granted, without costs.
Cases cited
- Davis v. Mayor 14 N. Y. 506 at 527 p. 8
- New York State Monitor Milk Pan Ass'n v. Remington Agricultural Works 89 N. Y. 22 p. 8