Butler Hard Rubber Co. v. Solomon Toube Co.

McAdam, Ch. J. The summons was served upon Solomon Toube, and he verified the answer as defendant. The summons and complaint misdescribed the defendant as the “ Solomon Toube Company,” the pleader supposing, that this title applied to a corporation or a copartnership run by Toube. It turns out to be neither. The plaintiff' now seeks to amend by striking out the supposed corporate name which represents no legal entity, and by substituting in its place the name of “ Solomon Toube,” tkeperson served. The application will be granted, but on. payment within five days of $25 costs. An amended summons and complaint must be served at the same time.. The defendant to answer within six days thereafter. The amendment to be without prejudice to the proceedings-already had. The case relied upon by the defendant (89 N. Y. 22), has no application to the question presented here. In that case, the application was to strike out the name of' the defendant, a legally organized corporation, and to insert, instead thereof, the names of three individuals as defendants. The court properly held that this could not be done, as it involved a substitution of parties defendant. In the present case there was no corporation, and no substitution of parties is sought. The question which arises here is merely one of misnomer, which is always susceptible of amendment (see 17 Abb. Pr. 318, note; 20 N. Y. 355). No appeal was taken.