Isaacs v. Mintz — 34 N.Y. St. Rep. 758

Majority

p. 758

Morris Isaacs, Resp’t, v. Isaac Mintz, Def’t.^[1] Hyman Levy, Resp’t, v. Isaac Mintz, Def’t.^[1]

(New York Common Pleas,

General Term,

Filed January 5, 1891.)

Headnote

Pleading—Misnomer of defendant.

, If a man. be known by two names he may be sued by either, and process against his property or Ms person in such an action may be justified by showing that he was equally well known by both names. It is not necessary that both names be set forth.

Appeal from an order of the general term of the city court, affirming an order of the special term denying a motion to set aside levies and sales under execution in the above actions, and that the plaintiffs therein pay over the proceeds of such sales to the receiver of Israel Mintz. .

The ground of the motion was that the name of Isaac Mintz in the proceedings, judgments and executions in said actions was a misnomer, the defendant’s real 'name being Israel Mintz, and not Isaac, and that the sales of his property under process in which he was so misnamed was void.

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Carlisle Horwood, Jr., for rec’r, app’lt; Herman Joseph {Arthur Furber, of counsel), for resp’ts.

The city court found upon the facts before it that the defendant Mintz was equally well known by the name of Isaac and Israel, and held, therefore, that there was no misnomer in the proceedings and process.

There was abundant evidence to sustain this conclusion. The defendant’s wife swore that some persons called him Isaac, and although she could not recollect any particular person who did so in her presence, the value of her testimony was not thereby destroyed.. The defendant admitted to the deputy sheriff that his name was Isaac. He stated when served with the summons that his name was Isaac; and the affidavit of Hyman Levy says that in Hebrew the names of “Isaac” and “Israel” are interchangeable. The appellant, however, claims that if the defendant were equally well known by both names, the fact should have been alleged in the complaint, and the defendant should have been sued under one of the names with an alias. This was not necessary. If a man be known by two names, be may be sued by either, and process against his property or his person in such an action may be justified by showing that he was equally well known by both names.

In Gurnsey v. Lovell, 9 Wend., 319 , Savage, Ch. J., says: “ The defendants could not justify the arrest of the plaintiff by a wrong name, though he was the person intended to be arrested, unless he was known as well by one name as the other,” citing Mead v. Haws, 7 Cow., 332 , in which he said it was decided in Shadgett v. Clipson, 8 East, 328, that the defendant could not justify an arrest of the plaintiff by a wrong name, though he was the person intended to be arrested, unless it was shown that he was known by one name as well as the other. And reference was made to the case of Griswold v. Sedgwick, 6 Cow., 456 , where Sutherland, J., cited and followed Cole v. Hindson et al., 6 T. R., 234, in which Lord Kenyon remarked that the defendants were not justified in seizing the goods of Aquila Cole under a distringas against Richard Cole; and that the averment in the plea that Aquila and Richard were the same person did not assist the defendants, as they had not also averred that the plaintiff was known as well by one name as by the other.

In Farnham v. Hildreth, 32 Barb., 277 , all the foregoing cases were cited, and the decision in Cole v. Hindson quoted; and Allen, J., says: “ It is well settled that a defendant in an action fof false imprisonment cannot justify the arrest of the plaintiff by a wrong name, though he is the person intended to be arrested, unless it is .shown that he is as well known by one name as the other.”

From these cases it appears that even though the defendant be •sued by a name not his real one, and his property or his person be taken by process in such a name, yet in action for trespass or false imprisonment such process would be justified by showing that he was equally well known by both names. It is nowhere stated that in the original action both names must be set forth. It

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is the language used in Cole v. Hindson in regard to what is necessary in the plea of justification which the appellant here wrongly interprets as holding that there must be the same averment in the original complaint.

The city court decided correctly, therefore, in holding that the executions were not void because the defendant was named therein as Isaac Mintz and not as Israel Mintz, the court being satisfied that he was equally well known by both names.

The question of fraud was also properly disposed of. It would not be advisable to try such an issue upon a motion. The receiver has his action to set aside the judgment of these plaintiffs on the ground that the debts were fictitious, if he is disposed to try that issue. We think he loses no right in that respect by this decision.

The order appealed from should be affirmed, with costs

Bischoff and Pryor, JJ., concur.