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party complaining that he did not have notice. Where the amendment is substantial, either by enlarging the cause of action or relief, or bringing in new interests to contest the action, so that one already a party ought to have a right to challenge the proposed modification of the controversy, notice should be required; and if the plaintiff proceeds without notice, a party who has been served, and who is prejudiced, should, on seasonably objecting, have the same opportunity to be heard that he would have had, if notice had been given.
11. Changing names.] —Although the practice in New York does not permit striking out the original party, either plaintiff* or defendant,45 and substituting in his place one who ought to have been originally named instead (at least after the defendant originally named has been served), plaintiff can always correct the name or the designation of a party, either plaintiff6 or defendant,47 provided the person intended is not changed. In the application of this proviso close distinctions are involved.
12. — corporations, etc.] — A corporation is for this purpose regarded as a distinct person from its members and officers.48 Hence the summons and complaint in an action against a corporation, having been served on the corporation by delivery to a proper officer, cannot be amended by substituting the name of such officer as an individual defendant in the place of the corporation, or vice versa" and upon the same principle a summons naming defendants by their proper names and as trustees of a designated school district, does not bring the corporation into court, and cannot, after service on some of the persons named, be amended into an action against the corporation in their stead :60 nor can an action commenced against the city corporation be transformed into one against the coterminous county ;51 for in all these cases the person sued originally is a different one, in contemplation of law, from the person proposed to be substituted.
44 Davis v. Mayor, etc., of New York, 14 N. Y. 506.
45 N. Y. State Monitor Milk-Pan Asso. v. Remington Agricultural Works, 89 N. Y. 22.
The English practice and that in some of the States is more liberal in this respect.
46 Bank of Havana v. Magee, 20 N. Y. 355, 7 Abb. Pr. 134, allowing one who sued as a corporation, instead of as an individual banker, to amend.
Dean v. Gilbert, 92 Hun, 427, 36 N. Y. Supp. 1004 (action commenced by the title “ Dean, as president of the 0. Co.," allowed to be amended to name the corporation properly).
Barmon v. Clippert, 58 Mich. 377, 25 N. W. Rep. 371 (substituting Hannah for John was allowed at trial. Not having been actually made, and the judgment having repeated the mistake, evidence of the leave to amend was held receivable in a collateral action in which the judgment was in evidence).
47 See authorities below.
48 N. Y. State Monitor Milk-Pan Asso. v. Remington Agricultural Works (above); Newton v. Milleville Manuf. Co., 17 Abb. Pr. 318, note.
49 Licausi 0. Ashworth, 78. App. Div. 486, 79 N. Y. Supp. 631 (court held to be without power to strike out individual defendant, and substitute a corporation of which he was president, the complaint charging him indi: vidually).
But where the allegation of incorporation is a mistake, and the apparent corporate name under which the persons acting under it were doing business,52 is in legal effect merely a partnership name, or a designation of one whose rights are held as an individual,53 the question is merely one of misnomer, and the summons having been served on the right person, the name may be amended when the error appears, on a motion, or on the trial;$4 and if the error is excused and the defendant has not been prejudiced, amendment may be made without imposing terms, 55 and ought to be without imposing terms if the error resulted from defendant's misleading use of such designation.
A misnomer is waived unless pleaded. 56
13. — representative names.] — Where the right person has been named, error in naming him in a representative capacity and asking judgment accordingly, instead of individually, is amendable by striking out the words relating to the representative capacity and estate.57
50 Bassett v. Fish, 75 N. Y. 303.
51 Supervisors of New York v. Miller, 4 Hun, 71 (holding the substitution of the Mayor, etc., of the city as sole plaintiffs, in place of the Board of Supervisors of the county, unauthorized).
52 Evoy r. Expressmen's Aid Society, 21 N. Y. Supp. 641, 51 St. Rep. 38.
63 Bank of Ilavana r. Magee, 20 N. Y. 355; s. c., 7 Abb. Pr. 134; Skoog r. New York Novelty Co., 4 Civ. Pro. Rep. (Browne) 144; Butler Hard Rubber Co. v. Solomon Toube Co., N. Y. Daily Reg., Jan. 7, 1884.
54 Munzinger t. Courier Co., 82 Hun, 575, 31 N. Y. Supp. 737 (amendment allowed from allegation and naming of defendant as a corporation to a voluntary association).
53 Bank of Havana v. Magee (above).
56 N. Y. Code Civ. Pro., 8 1777. And a misnomer may be cured by formal amendment. Reilly 1. IVorld Pub. Co., 14 N. Y. St. Rep. 390.
57 Tighe r. Pope, 16 Hun, 180, changing action against administratrix into an action against her personally. Boyd 1. l'. S. Mortgage & T. Co., 84 App. Div. 466, 82 N. Y. Sunn. 1001 (striking out designation of defendant coni. pany as trustee, notwithstanding the defense of the statute of limitations would be cut off'; on a later appeal, 94 App. Div. 413, 88 N. Y. Supp. 259, it was held that the effect of the amendment was to prevent the application of
Conversely, error in naming him individually is amendable by naming him as representative. 58
14. Originally omitted party. ] - Where plaintiff seeks to bring in a third person as an additional defendant, entirely on the ground that he ought to have been a defendant originally, on the facts existing at the commencement of the action, it is the proper practice to bring him in by amended summon s.69 It is equally within the power of the court to allow it to be done by supplemental summons.60
The practice in chancery was to allow formal parties to be added by amendment without supplemental bill, provided the amendment was applied for before issue. After issue additional parties were brought in by supplemental bill (unless the object was simply to substitute a new party to cure an abatement, in which case a bill of revivor was used); hut if such new parties were merely formal, the object being merely to give them notice of the cause of
the statute except as of the time the summons was served, even though the order granting the amendment directed the service of an amendment summons and complaint).
The contrary was held in Phillips v. Melville, 10 Hun, 211, where, however, the amendment was allowed at the trial, and the reversal was put upon the ground that the case presented a failure of proof, and not a variance, and the change was one that could not be made at the trial.
59 See Haddow v. Lundy, 59 N. Y. 320, aff'g 3 Supm. Ct. (T. & C.), 777, where an action commenced in the individual right was changed, on plaintiff's subsequently acquiring a representative character, to an action in that character, the new right having appeared by the defendant's suplemental pleading.
See further in support of the principle stated in the text, Stilweell v. Car. penter, 2 Abb. N. C. 238.
Alker v. Rhoads, 73 App. Div. 158, 76 N. Y. Supp. 808 (amendment allowed changing designation of defendant individually to “as general manager and attorney in fact, representing the underwriters at the People's Fire Lloyds”).
The court cannot permit such an amendment after trial and judgment. United Press . Abell, 73 App. Div. 240, 76 N. Y. Supp. 692.
59 Luckey v. Mockridge, 112 App. Div. 199.
60 The language of the New York statute prescribes a supplemental summons, Code Civ. Pro., $ 453. The difference is purely formal, and an objection against either form that the other ought to have been used, ought to be disregarded or met by amendment instanter. The object of prescribing supplemental summons appears to have been to make it clear tnat ine new defendant only need be served. There are cases, however, where an addition to the parties to the controversy ought to be notified to other defendants, and this is perhaps the reason why amendment is often adopted instead of the simpler form of supplemental summons; or, an amended complaint is served. See Schun v. Brooklyn Heights R. Co., 82 App. Div. 560, 81 N. Y. Supp. 859.
Where a summons and complaint in foreclosure were amended by striking out a defendant and adding others, but the allegations of the complaint were unchanged, held, that neither the order amending nor the amended complaint need be served on the defendants who had appeared. Weil v. Martin, 24 Hun, 645, 1 Civ. Pro, Rep. 133.
action originally alleged, so that they might be concluded by the decree, it was enough that the supplemental bill was made against them only and served on them only.61
Where a third person is ordered brought in by a supplemental summons as an additional defendant to answer merely the original : complaint, the supplemental summons need only be addressed to
him; but whether brought in by amendment, or by supplemental sumiinons, the court should give leave only upon notice to the defendants affected.62
15. One becoming proper party pending the action.] — The rules ás to bringing in those who would not originally have been proper parties, but have become such by events occurring pending the action, are different.' " A party coming in merely as the successor of one previously a party may be brought in on motion, and the forms for cases of this class, as well as for all cases where an originally proper party comes in on his own application, are given in the chapter on PARTIES. A party coming in by virtue of a new right or liability originating since the action commenced,
is brought in by supplemental pleading, the forms for which are - given in the chapter on PLEADING.
16. Effect of bringing in.] -A party defendant brought in by amendment, unless he comes in merely as successur in interest of one who was previously a party, is deemed a party only from the time of service upon him or appearance, so that such amendment does not save the Statute of Limitations if it had already run in his favor. 63
Nor has he usually a right to appeal from the order allowing the amendment. 84
81 Ensworth v. Lambert, 4 Johns. Ch. 605, and cases cited. In this case the objection was raised after hearing and report, but by a defendant who had not answered..
62 Luckey v. Mockridge, 112 App: Div. 199.
63 Shaw 1. Cock, 78 N. Y. 194; Abbott v. N. Y., L. E. & W. R. R. Co., 120 id. 652. But if the amendment merely continued the defendant in a different capacity, the service of the original summons is the commencement of the action against him. Boyd v. U. S. Mortgage & T, Co., 94 App, Div. 413, 88 N. Y. Supp. 289.
64 Grant v. IIubbell, 34 N. Y. Super. Ct. 224. The true ground of this rule is not that he cannot appeal from any order made before he was brought in (for a defendant cannot justly be thus brought in under an order and foreclosed of a right to be heard, unless he comes in merely as a representative of a party who has had his day in court), but because leave to bring him in is
III. AMENDMENTS AS TO SERVICE. 17. Defects in service.] — Defects in the service of summons, if not cured by general appearance, must be cured by a fresh service.
This rule applies to defects in the application or order for leave to make substituted service or service by publication or mailing. 65 The facts required to be shown upon such application and the substantial requisites of the order are jurisdictional. The general opinion is that any substantial defects in the affidavits, or in the order, or the compliance with it, are fatal to the service; 66° and that a failure to allege a necessary fact is not met by showing in support of the service that it existed, and defendant was not prejudiced. 67
18. — in copy served.] - Where the original summons was correct, and the error was in serving an inaccurate copy, it is enough to ask leave to serve correct copy. An omission of nonessential words in the copy served cannot vitiate,88 and upon a
only in the nature of leave to sue him. There have been several comparatively recent appeals from such orders, in which the party brought in has assailed the power of the court to grant the order. See Heffern v. Hunt, 8 App. Div. 585, 40 N. Y. Supp. 914; Schun' v. Brooklyn Heights R. Co., 82 App. Div. 500, 81 N. Y. Supp. 859; Ten Eyck v. Keller, 99 App. Div. 106, 91 N. Y. Supp. 169.
63 Plaintiff's attorney may properly obtain a second order, it he fears the first order is defective. Littlejohn v. Leffingwell, 34 App. Div. 185, 54 N. Y. Supp. 536.
66 Kendall v. Washburn, 14 How. Pr. 380 (holding failure to comply with order that complaint be filed,' not curable). See SERVICE BY PUBLICATION, Article IV of this chapter, supra.
67 There is much to be said, however, in favor of the more liberal rule that in a court of general jurisdiction, if the proper order was made in a case where plaintiff was entitled to it, a defect in papers not served nor required to be served, and which therefore could not have misled defendant, may be cured by amendment. The contrary rule enables an absentee served by publication in a proper case, to defeat a just judgment on the mere ground that though he had all the notice he was entitled to, his absence, though admitted, was not then adequately proven.
Amendments have been sometimes allowed. See Pierce v. Butters, 21 Kans. 124 (failure to show non-residence, etc.).
Mojarrieta 0. Saenz, 80 N. Y. 553, allowed amendment of the order, by striking out surplusage of title, which, if allowed to stand, would render it voit.
Ven Rhade v. Von Rhade, 2 Supm. Ct. (T. & C.) 491, disregarded the fact that the address used in mailing was more specific than that used in the order.
For some other cases, see notes in previous parts of this chapter.
68 Van Wyck r. Hardy, 4 Abb. Ct. App. Dec. 496 (case of omission from copy served by publication).