Thurber-Whyland Co. v. Klittner

Headnote

Summons—Amendment aftek Judgment.

The summons and notice in an action brought by the “Thurber-Whyland Co.,” a corporation, was entitled, by mistake, “Thurber, Whyland & Go.,” the name of the predecessor partnership. The complaint, properly entitled, alleged the assignment of the cause of action by the partnership to the corporation, and judgment was entered thereon by default in the name of the corporation. Held, that the error in the'summons was properly corrected on motion after judgment.

Appeal from Westchester county court.

Action brought in the city court of Yonkers by the Thurber-Whyland Company against Frank Klittner to recover for goods sold and delivered. Defendant appeals from an order of the county court affirming an order of the city court allowing an amendment of summons after judgment, arid denying a motion to set aside such judgment as irregular. Affirmed.

The summons and notice in the action, duly served upon defendant, was, by mistake, entitled in the partnership name of “Thurber, Whyland & Co.,” instead of the “Thurber-Whyland Company,” the corporation which succeeded the partnership and continued its business. The complaint was properly entitled, and alleged the assignment of the cause of action by the partnership to the corporation, and judgment by default was entered in the name of the corporation. Subsequently defendant moved to set aside such judgment on the ground that the summons served upon defendant was at variance with the complaint, and that the judgment was irregular. At the same time plaintiff moved to amend the summons to conform to the complaint and judgment. From an order granting plaintiff’s motion and denying defendant’s motion defendant appealed to the county court, where the order was affirmed, and he appealed to this court.