Newman v. Dickson. money, the equitable lien will be waived unless there be an express agreement that it shall be retained. In the case at bar, the memorandum note and agreement show that the lien on the land was positively made the prime security for the balance of the purchase money, on defendant's separate estate; and the allegation in the complaint alleges no other separate estate, and that the land is expressly charged with the lien, and there is no evidence of any waiver. The plaintiff is entitled to judgment of foreclosure, with costs. NEWMAN v. DICKSON. N. Y. Supreme Court, First Department; Chambers, December, 1876. FORECLOSURE.-PLEADING.—AMENDMENT. A defendant in foreclosure, setting up that the mortgage is void for usury between plaintiff and a co-defendant, cannot compel an amendment of the complaint, for the purpose of setting forth the transaction, but may be protected by litigating the question with his co-defendant. Motion to compel plaintiff to amend complaint. W. G. and J. E. McCormack conveyed certain real estate to the defendant, Dickson, who gave back a purchase money mortgage. The McCormacks afterwards assigned the bond and mortgage to the plaintiff, Newman; and the defendant, Dickson, conveyed the land to one Fowler. Plaintiff brought this suit against Dickson and Fowler to foreclose the mortgage: Dickson answered alleging that the bond and mortgage were given to the Mc Newman v. Dickson. Cormacks, and by them assigned to the plaintiff, at a discount of fifteen per cent. in pursuance of a scheme between himself, Fowler and the McCormacks, and with the knowledge of the plaintiff, to avoid the usury law, for the accommodation of Fowler. After the service of the answer, the defendant, Dickson, moved to compel the plaintiff to amend his complaint by inserting allegations setting up the facts alleged in his answer; and asking that the defendant, Fowler, be compelled to join issue on this defense. Abner C. Thomas, for the motion. Joseph Fettretch, opposed. DAVIS, P. J.-The motion must be denied. The plaintiff cannot insert the allegations of the answer of Dickson, in his complaint without destroying his right of action. The answer sets up a defense to the complaint, and, if found to be true, will defeat the action altogether. The defendant, Fowler, has notice of the allegations of his co-defendant's answer, and the court will probably have power, on the trial, to protect the defendant, Dickson, if he establish the facts alleged, by so framing the decree as to require any deficiency to be first collected of him.* However this may be, it is clearly not the right of Dickson to compel the plaintiff to amend, by inserting allegations of this character denied. Motion denied, with ten dollars costs, but without prejudice to any proceeding to compel the defendant, Fowler, to take issue on the allegations of the answer. No appeal was taken. * As to litigation between co-defendants in foreclosure, see Smart v. Bement, 4 Abb. Ct. App. Dec. 273. Muldoon v. Pierz. MULDOON v. PIERZ. N. Y. Supreme Court, First Department; Chambers, December, 1876. SUPPLEMENTARY PROCEEDINGS.-CONTEMPT.-MISNOMER. A defendant, sued by a wrong name, does not, by failing to appear in the action, waive his right to object to the misnomer, even after judgment and execution, and will not be considered in contempt for failing to comply with an order for examination as a judgment debtor, supplementary to execution, in which his name is erroneously stated, although he is the real person intended. Motion to punish Anthony Pirz for not obeying an order served on him for the examination of August Pierz, a judgment debtor. The plaintiffs, James Muldoon and John Lynch, obtained a judgment by default, defendant not having appeared, against August Pierz, in the New York supreme court, in the city of New York, in December, 1875, for $256.55, and a transcript thereof was filed in Queens county, where the defendant resided, and an execution issued, which was returned unsatisfied. On November 15, 1876, an order was obtained from Judge LAWRENCE for the examination of the judgment debtor, August Pierz, before a referee in Queens county. The person making the affidavit of service states therein that "he served upon August Pierz, the defendant herein (who said his name was Anthony) personally, copies of the within affidavit and order, by leaving the same with the said August Pierz (Anthony) said defendant herein, and at the same time and place exhibiting to him the within originals. And that he knew the said August Pierz (Anthony) to be the individual described in said affidavit and order." As the defendant did not appear before the referee on the Muldoon v. Pierz. Thereupon an return day, his default was taken. order to show cause why defendant should not be declared in contempt, and an attachment issue against him was made. One of the affidavits upon which the order to show cause was obtained stated, "That the deponent was a book-keeper for the plaintiffs when the defendant contracted the debt for which this action was commenced; that he saw defendant on two occasions before the commencement of this action, for the purpose of collecting the afore-mentioned debt; that he served upon said defendant the summons and complaint herein, without objection from him as to any misnomer; that he served upon said defendant the order for examination in supplementary proceedings; that he knows the person recited in the foregoing proceedings to be the one identical person named in this action as the defendant, and deponent knows the aforementioned person so served to be the judgment debtor herein." F. B. Churchill, for the motion. F. W. Angel, opposed,-Claimed:-I. That defendant had not waived his right to appear, even after judgment and execution (Farnham v. Hildreth, 32 Barb. 277, 281; Moulton v. de ma Carty, 6 Robt. 470). II. That service of a summons upon a party by a wrong name, did not give the court jurisdiction over his person, and his appearance could not be compelled, nor jurisdiction be acquired by amendments after service (Ib.; Hoffman v. Fish, 18 Abb. Pr. 76; Cole v. Hindson, 6 Term, 234; Griswold v. Sedgwick, 6 Cow. 456). LAWRENCE, J.-The judgment was obtained against August Pierz, and the order for the examination on proceedings supplementary to execution was served on Anthony Pirz. The order required the debtor to Rohshand v. Waring. appear before a referee, to be examined in Queens county, and Anthony Pirz having failed to appear, the motion is to punish him for contempt. In Farnham v. Hildreth (32 Barb. 277) it was held that a judgment and execution against Freeman Hildredth, will not authorize a sale of the property of Truman Hildreth, although the latter may be the individual intended; that the judgment and execution must describe the party whose property is sought to be taken, and it is not enough that the right man is made to pay a debt. Also, that where a defendant sued by a wrong name fails to appear in the action, he does not waive his right to object to the misnomer, after judgment and execution. This case seems decisive of this motion. Even if Anthony was the real person intended, he cannot be considered as in contempt for failing to comply with an order directed to August. This case differs from the case of Breen, which I decided last March. There Breen 'had appeared and defended the action; and I held that, under the circumstances, he could not complain that he was arrested on an execution in which his name was erroneously stated. Here the defendant never has appeared in response to or in any way recognized or admitted the validity of the order. The motion to punish Anthony Pirz for contempt, is therefore denied, but without costs. There was no appeal. ROHSHAND v. WARING. N. Y. Supreme Ct., First Department; Chambers, November, 1876. ARREST ON SUPPLEMENTARY PROCEEDINGS. To make a case for arrest of the judgment debtor, in supplementary proceedings (under the fourth provision of section 292, of the |