(Supreme Court, Appellate Term, First Department.Headnote
Courts <§=3189—Municipal Courts—Amendment of Judgment—Misnomer.Where a judgment is erroneously entered in the Municipal Court against a party under a misnomer, the mistake may be corrected in the furtherance of justice, under Code Civ. Proc. § 723, providing that the court may at any stage of the action, before or after trial, in the furtherance of justice, amend any process, pleading, or other proceeding, by correcting a mistake in the name of a party, and under section 3317, subd. 6, providing that the former section applies to all courts.
[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. <§=3189.]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Aaron Kriegelman against Abraham Ariewitz, sued as Abraham Jaronowitz. From an order denying plaintiff’s motion to correct a judgment in his favor, he appeals. Reversed and rendered.
Argued October term, 1915, before BIJUR, PAGE, and SHEARN, JJ.Max Eippman, of New York City, for appellant.
Benjamin Kirschstein, of New York City, for respondent.
The summons and complaint were entitled as Abraham Jaronowitz, defendant. Abraham Ariewitz was served, and appeared by attorney and answered. The caption of the answer was “Aaron Kriegelman, Plaintiff, against Abraham Ariewitz, Sued Herein as Abraham Jaronowitz.” When the case was tried, the defendant’s attorney cross-examined the plaintiff and summed up on behalf of Ariewitz. Plaintiff obtained judgment, which was erroneously entered as against Abraham Jaronowitz. Thereafter motion was made to correct the judgment, which was denied. There can be no question but that Ariewitz was the proper party, as he himself has stated that he was the defendant, sued by a misnomer. -Such a mistake should be corrected, in the furtherance of justice. C. C. P. § 723, and section 3347, subd. 6.
The order will therefore be reversed, with $10 costs, and the motion granted. All concur.