majority">Moses Taggart, C. J.

In the case of Griswold a. Sedgwick (6 Cow., 456), the process of arrest recited that by an order made by Wm. B. Vau Hess, J., in a case between Daniel S. Griswold, plaintiff, and Hill, defendant, that Griswold pay the clerk of that court $1,200 in ten days after notice of order. And whereas the said Samuel S. Griswold had neglected to comply with the order, although more than ten days had elapsed, it commanded the marshal to take the said Samuel S. Griswold, &c., and keep him in custody until he should perform the order, or until the court should make order to the contrary. Daniel S. Griswold was arrested, and brought an action for false imprisonment. Held, that he could sustain the action, although he was the person intended, and the name of Samuel was inserted by mistake.

The case of Cole a. Hindson (6 Term., 243); Shadgett a. Clipson (8 East., 328); Wilks a. Lorck (2 Taunton, 400); Scandover a. Warne (2 Camp., 270); Morgan a. Bridges (1 Barn. & Al., 647); are in substance to same effect. Crawford a. Satchwell (2 Strange, 1218), and Smith a. Bowker (1 Mass., 76), held that a defendant sued by a wrong name should plead the misnomer; but it seems in both of these cases the defendant appeared.

The case of Farnham a. Hildredth (32 Barb., 277), decides that a judgment and execution against Freeman Hildredth would not authorize a sale of the property of Truman Hildredth. In case of Ford a. Gardner (1 Johns. Cas., 243), and several other cases, amendments have been allowed correcting the plaintiff’s name.

So amendments have been allowed inserting a different name as defendants (7 Taunton, 295); and correcting name of defendants (2 Bos. & Pul., 109); Merton a. Huste (3 Maul. & Sel., 450). In all these cases, however, it will be found that the defendants upon whom process had been served appeared, thus giving the court jurisdiction of their persons.

. See case of Farnham a. Hildredth, supra. I doubt the application of section 175 to Justices’ Courts. Code, § 8 provides that part 2 of- the Code is divided into fifteen titles; the first four (sections 69-120, both inclusive) relate to actions in all the *79courts of the State (including of course Courts of Justices of the Peace). The others relate to actions in Supreme Court and other courts (but not including Justices’ Courts).

Sections 174 and 175 are in title 7, and are not expressly applied by section 8 to Justice’s Courts. So subdivision 15 of section 64 of the Code provides that the Code, so far as relates to the form of actions, parties to actions, the rules of evidence, the time of commencing actions, and the service of process on corporations, shall apply to Justice’s Courts.

See Gates a. Ward (17 Barb., 424); Webster a. Hopkins (11 How. Pr., 148).

It is settled by various authorities that I cannot set aside, annul, or vacate the judgment. I examined that question in case of De Wolf a. Mook, heretofore decided by me, and my decision has been affirmed by the general term of the Supreme Court of this district,' and shall direct an order like the order made in that ease so far as the form of that order applies to this case, and in substance as follows:

On reading and filing affidavits, and after hearing Mr. Willett, counsel for defendant; and Mr. Jordan, counsel for plaintiff, and on motion of James M. Willett, counsel for defendant: It is ordered that the plaintiff be restrained from proceeding upon the execution issued upon the judgment in this action, and from enforcing said judgment by execution thereon, without prejudice to the right of the plaintiff to proceed to enforce the said judgment, or to sue "for and collect the debt or demand for the recovery of which said judgment was rendered, by action, and without prejudice to the right of the defendant to interpose any defence he may have, in any such action.

And that neither party shall have costs of this motion against the other.

Citation profile

How this case has been treated — in progress