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71 Misc. 145

Fassy v. Jacobs

New York Supreme Court

Decided March 15, 1911

New York Supreme Court · decided 1911-03-15

<p>Process — Defects and amendments—Amendment — líame of party.</p> <p>Where only one of two brothers sued as partners in business under a firm name was served with the summons, and, upon the trial of the action, it appeared that the brothers were not copartners and that their father was the person who transacted the business under the firm name alleged in the complaint, the court has no power, under section 723 of the Code of Civil Procedure, to make him a party to the action by amendment,</p>

Relies on Davis v. . the Mayor, C., of New-York

Good law ✅— No negative treatment on recordhow we know

Decided 1911-03-15

How this case has been cited

Cited by 3 later decisions — most recently January 1940

3 state decisions

101911192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Hendrick, J.

¶1Two brothers were sued herein as “ Samuel Jacobs and Benjamin Jacobs, copartners in business under the firm name and style of Jacobs Bros.” An affidavit follows the complaint in the printed case in which affiant states that he served the summons and complaint upon defendant, Samuel Jacobs, whom he knew to be the person described in the complaint.. The codefendant does not seem to have been served. Both defendants appeared by attorney and served a joint answer.

¶2On the trial no cause of action was proved against either defendant. Instead of being copartners, the proof shows that Benjamin is in the florist business and his brother Samuel is working in some capacity for his father. Neither of them is proved to have had any connection with the transaction alleged in the complaint. They were, therefore,' entitled to judgment dismissing the complaint with costs.

¶3• But it appeared at the trial that one Morris Jacobs, who is the father of said two brothers, was in the wholesale fruit and nut business, and it was he who transacted the business alleged in the complaint. Plaintiff testified that he represented himself as Samuel and introduced the real Samuel as his partner Benjamin. Thereupon, plaintiff moved “to amend the name of the defendant called Samuel, to Morris Jacobs, on the ground that he has appeared and posed as Samuel Jacobs.” This motion was granted, and defendant excepted.

¶4It appears that the elder Jacobs is transacting business under the name of “ Jacobs Bros.,” the name having survived the death of his brother and former partner.

¶5If Morris Jacobs had ever been summoned into this action by the name of Samuel, or by some other than his true name, we are of opinion that the order granting the amendment *147would have been within the power and discretion of the court. Code Civ. Pro., § 723.

¶6But this is not a case of error in names, but of mistake in persons. Morris was not summoned, but Samuel was summoned. We must hold, therefore, that the court had no power to substitute one whom plaintiff intended to sue, in place of another whom he did sue. Davis v. Mayor, 14 N. Y. 506; N. Y. S. M. M. P. Assn. v. Remington Agril. Works, 89 id. 22.

¶7The judgment must be reversed and complaint dismissed, with costs to appellant in this court and in the court below.

¶8Lehman and Delany, JJ., concur.

¶9Judgment reversed.

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