Applegate v. Westchester Hardwood Co. — 59 N.Y. St. Rep. 277

Majority

p. 277

Loie Applegate, Resp’t, v. Westchester Hardwood Company, App’lt.

(New York Common Pleas, General Term,

Filed May 17, 1894.)

Headnote

Judgment—Correction.

Where a judgment is taken in the name of a person, not the plaintiff named in the summons, without any substitution, the record cannot be corected on appeal or remitted for correction.

Appeal from a judgment rendered in the district court of the city of New York, for the first judicial district.

George W. Gibbons, for app’lt; John F. Foley, for resp’t.

A summons was taken out of the first district court in the name of William H. Morton, and there is proof of service of the same upon the defendant in this action. On the margin of the summons there is written in red ink the name of Loie E. Appleby, but the name of Morton is not stricken out, nor is the name of Appleby written in such a way as to indicate that he was substituted for Morton, nor is there anything in the subsequent proceedings to show that Appleby or Applegate was at any time substituted in the place and stead of Morton as plaintiff in this action. It is now too late to correct the record or to send the return back for correction, therefore the judgment must be reversed and a new trial ordered with costs to the appellant to abide the event.