Evoy v. Expressmen's Aid Society — 51 N.Y. St. Rep. 38

Majority

p. 38

Ada Evoy, Resp’t, v. The Expressmen’s Aid Society, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed January 18, 1893.)

Headnote

Process — Amendment—Error in name op dependant.

The action was brought against defendant as a foreign corporation. The answer alleged that defendant was a voluntary association and not a corporation. It appeared that a number of persons were engaged in business under the name of the Expressmen’s Aid Society, one of whom was served. Held, that as the action was brought against the right body of persons, but under the wrong name, plaintiff having been misled by their use of such name, it was proper to allow an amendment of the summons by substituting the names of the persons constituting the association as defendants.

Appeal by the defendant, Expressmen’s Aid Society, from an order made at special term of Erie county, and entered September 9, 1892, amending the summons by inserting as defendants, in place of Expressmen’s Aid Society, the names of sundry persons composing a voluntary association doing business under the name of Expressmen’s Aid Society.

E. C. Sprague, for app’lt; Duckwitz, Thayer & Jackson, for resp’t.

This action was brought to recover the sum of $2,000 upon a certificate of membership and insurance, issued in the name of the defendant to the husband of the plaintiff, payable to the plaintiff as the wife of the insured; James G. Evoy. The allegation of the original complaint was, that the defendant was a foreign corporation organized under and by virtue of the laws of the state of Ohio. The answer alleged, that the defendant was a voluntary association and not a corporation. A motion

p. 39

was accordingly made by the plaintiff to amend the title of the summons, so as to substitute in the place of Expressmen’s Aid Society the names of the persons constituting this voluntary-association. The moving affidavits show that the defendant had no president or secretary residing in the state of New York.

We think the order in this case was properly made. The appeal is taken in the name of the “ Expressmen’s Aid Society.” The order as made and entered required the respondent to serve-all the defendants named as constituting the persons forming the voluntary company. There is no doubt but that the plaintiff intended'to sue the company doing business under the name of the “ Expressmen’s Aid Society.” She made a mistake in the name of the parties conducting the business in the name of that company. The person served was a member of the voluntary association. The action appears, therefore, to have been brought against the right body of persons, but under the wrong name, and hence it was eminently proper for the court to make the amendment asked for in the notice of motion. There is no such corporation as the “ Expressmen’s Aid Society,” but there is a body of men doing business under that name, one of whom, it was shown was served with the original process in the action against the “ Expressmen’s Aid Society.” The case is unlike those relied upon by the learned counsel for the appellant where a party had actually sued a real corporation for a cause of action existing against a copartnership. But there is no such complication in the papers on this appeal. Indeed, opposition to the motion seems to have been rather technical than substantial; for even if the appeal had been taken by the parties who were brought in and substituted in the place of the defendant, they would hardly be expected to succeed, for the reason that their own conduct by using the name of “Expressmen’s Aid Society,” in the transaction of their business, misled the plaintiff. Much, less could the appeal be expected to be successful when taken in the name of a corporation that had no existence whatever. The special term, we think, properly refused to impose any terms of making the amendment. This manifestly was upon the ground that the plaintiff had been misled by the conduct of the parties carrying on the business in the name of the “ Expressmen’s Aid Society.”

The order appealed from should be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Dwight, P. J., and Lewis, J., concur.