Isaacs v. Mintz — 33 N.Y. St. Rep. 423

Majority

p. 423

Morris Isaacs, Resp’t, v. Isaac Mintz, App’lt. Hyman Levy, Resp’t, v. Isaac Mintz, App’lt.

(City Court of New York,

General Term,

Filed October 6, 1890.)

Headnote

Judgment—Misnomer of defendant.

When a person is known equally well by two names, he may be sued by either name, or both, anda judgment recovered against him in either name is valid.

Appeal from order made at special term, denying motion to set aside sale upon executions.

Norwood & Coggeshall, for app’lt; D. Leventritl, for resp’ts.

The proof shows that Israel Mintz went by the name of Isaac Mintz, and the rule is that when a person is known equally well by two names, he may be sued or indicted by either name or both. Eagleston v. Son, 5 Robt., 640 ; Kennedy v. The People, 39 N. Y., 250 . On this theory the judgment was good as to the debtor, and equally so as to his receiver. The creditors, represented by the receiver, sued the defendant by the name of “ Isaac,” recovered judgment in that name, and after the return of an execution instituted supplementary proceedings, after which they undertook to amend all their prior proceedings nunc pro tune without issuing a new execution, so that the receiver builds his title on the same alleged error of which he complains. H there was fraud in obtaining the judgments, an action will lie to set them aside. For these reasons, and those assigned by the court below, the order appealed from will be affirmed, with costs.

McAdam, Ch. J., Ehrlich and Van Wyck, JJ., concur.