Corn v. Heymsfeld

Seabury, J. The chief point to be kept in mind in determining this appeal is that the person who was served with process is the person against whom judgment has been rendered. Another fact of capital importance is that the person served knew that he was the person intended to be served. The defendant, Adolph Heymsfeld, is coneededly the person to whom the goods for which the plaintiff seeks to recover were sold and delivered; and Adolph Heymsfeld when he purchased the goods was doing business under the name of “A. Heymsfeld.”- In the caption of the summons and complaint, the plaintiff described the defendant as “Abraham ” instead of “Adolph ” Heymsfeld. In so doing the plaintiff made a mistake in the defendant’s first náme. ' This mistake the court below has allowed to be corrected under the ample authority conferred by section 723 of the Code of Civil Procedure which is expressly made applicable to the Municipal Court. Mun. Ct. Act, § 20; Code Civ. Pro., § 3347, subd. 6. Section 723 specifically authorizes the court to amend any process, pleading or other proceeding “ by correcting a mistake in the name of a party.” This is precisely what ihe court below did, and it does not seem to be disputed that such an Amendment was “ in furtherance of justice.” The party whose surname was correctly designated in- the summons was served, and he -was apprised that he was the [480] party the action was intended to affect. Service under these circumstances gave the court jurisdiction. In Stuyvesant v. Weil, 167 N. Y. 421, the defendant’s true name was “ Mary J. Stockton,” and the summons which was served upon her described her as “ Emma J. Stockton.” The court said: “ The object of the summons is to apprise the party defendant that the plaintiff therein seeks a judgment against him so that he may take such steps as may seem advisable to protect his interests, and in order to assure its coming to his attention the statute requires personal service of the summons to be made when it is possible to do so. It may happen, as in this case, that the defendant’s name is riot correctly stated in the summons, and in such case it is the duty of the court, when properly moved, to determine whether, notwithstanding the error, the defendant was fairly apprised whether he was the party the action was intended to affect, and, if the answer'of the court be in the affirmative, its determination must be that the court acquired jurisdiction.”- Applying the rule declared in Stuyvesant v. Weil, supra, to the facts of this case, it is plain that the court below properly allowed the amendment. Apart from the fact that the present case arose in the Municipal Court, there is no distinction between the two cases. The attempt- of the defendant to make it appear that the plaintiff intended to sue Abraham Heymsfeld, who was the father of the defendant and who died prior to the time of service and to whom the plaintiff never sold' goods, is too shallow to be .entitled to serious consideration. Unless the fact that the present action arose in the Municipal Court and Stuyvesant v. Weil arose in the Supreme Court is a material distinction, that case is 'authority for the practice which has been adopted in this case. Section 27 of the Municipal Court Act provides that a summons in the Municipal Court “ must be addressed to the defendant by name, or, if his name be unknown, by a fictitious name.” It is claimed that in view of this section the error in the defendant’s name was jurisdictional.' Substan [481] tially a similar provision is applicable to' all courts of record. Code Civ. Pro., § 451. In either a court of record or an inferior court, service is necessary to enable' the court" to acquire jurisdiction. Jurisdiction depends upon the fact of service. "When that is accomplished, jurisdiction is acquired and the court is authorized to correct errors or mistakes in the name of a party. If the defendant’s name was not correctly designated, that was án error which could be corrected, whether it occurred in a court of record or in an inferior court. It is quite true that section 721 of the Code of Civil Procedure is applicable only to courts of record; but the amendment which the court made in Stuyvesant v. "Weil was made, as stated in the opinion of the court, “ in pursuance of the authority conferred by section 723 of the Code of Civil Procedure.” That section is applicable to the Municipal Court of the city of Hew York. The history of section 723 of the Code-, so clearly traced in the opinion of Mr. Justice Lehman, makes very clear the legislative purpose “ to stop the sacrifice of things of real substance upon the altar of mere technicality.” Stuyvesant v. Weil, supra,, gave effect to this legislative purpose, and in so doing it brushed aside a mass of cases which had so obscured the beneficent purpose of section 723 that for all practical purposes it might just as well not have been enacted. Stuyvesant v. Weil, supra,, has cleared the way and made it possible to apply a rational rule to this case which will prevent a fraud from being successful and do justice to the plaintiff. Merely because of the error in the name of the defendant, yre are not bound to turn this plaintiff out of court empty-handed and to deny him the justice which he seeks. The judgment appealed from should be affirmed, with costs. Page, J., concurs.