Riley v. Stern, 23 Abb. N. C. 435.

4 The Mayor, 14 N. Y., 506, 527; N. Y. State Monitor M. P. Assoc'n v. Rem. Assoc'n, 89 id., 22).

5

6

The suggestion that the Mechanic's Lien act provides that a lien shall not be invalid because of a mistake in the name of the owner in the notice of claim, does not aid the plaintiff. The question here is, as to the right of the court to strike out the name of one who ought never to have been made a party, and to insert in its stead the name of another person.

Code Civ. Pro., § 452, does not provide for such a case. It authorizes the bringing in of new parties whose presence is necessary to the determination of a controversy between parties to the action. But there is no controversy between Wayne Griswold and the plaintiff, and the presence of Mrs. Hopkins and Mrs. Griswold is not necessary for the determination of any such controversy. The plaintiff may attempt to bring a new action, but he cannot in this action substitute Mrs. Hopkins and Mrs. Griswold in the place of Wayne Griswold.

Motion denied.

1

RILEY v. STERN.

New York City Court, Special Term and Chambers, 1889.

[Reported in 23 Abb. N. C., 335.]

The court has power, where there are several defendants, to strike out the name of one or more who have been erroneously included, and substi tute the name of another person who is properly a party.

Plaintiffs sued the members of the firm of S. & M. Stern for goods sold. It appears, by the affidavit on which this motion was made, that when the summons and complaint were drawn, the names of the persons composing the co-partnership of S. & M. Stern, were taken from Trow's Co-partnership Directory for 1889, in which it was stated that the names of the co-partners were Solomon, Moses and Henry Stern. The answers of Solomon and Moses Stern to the complaint set up that Henry Stern was at no time a co-partner in the said firm of S. & M. Stern, but

McKane v. Dem. Gen. Com. of Kings Co., 21 Abb. N. C., 89.

that the said firm was composed of the defendants and one 2 Bernard Pasternak, and that the latter should have been made a party defendant. Whereupon this motion was made by plaintiffs to have the name of Henry Stern in the action stricken out and the name of Pasternak inserted in place thereof.

MCADAM, Ch. J. The court may strike out parties and add others (Code, § 723). The only limitation on the power is that a sole defendant cannot be stricken out and another substituted in his place (Re Gilleran, 7 N. Y. Suppl., 145; Davis v. Mayor, 14 3 N. Y., 506, 527; N. Y. State Monitor, etc., Asso. v. Remington, etc., Works, 89 id., 221). Motion to strike out the name of Henry Stern granted on payment to his attorney of $10 costs, and application to join the name of Bernard Pasternak with those of the two remaining defendants granted, without costs.

McKANE v. DEMOCRATIC GENERAL COMMITTEE OF KINGS COUNTY.

New York Supreme Court, Second District, Special Term, May, 1888.

[Reported in 21 Abb. N. C., 89.]

Where a voluntary unincorporated association was sued in its own name, but the summons was served on its president, an amendment of the title of the action will be allowed upon terms, changing the defendant's name to that of its president; * in order to comply with Code Civ. Pro., § 1919, † allowing such an association to sue or be sued in the name of its president or treasurer.

Bassett v. Fish, 75 N. Y., 303, and N. Y. Monitor Milk Pan Assoc. v. Remington Agricultural Works, 89 N. Y., 22, distinguished.

* Compare for case of service on the wrong defendant, Spence v. Griswold, 23 Abb. N. C., 239; s. c., p. 595 of this vol. and see also 1 Abb. New Pr. and F., 722.

+ Code Civ. Pro., § 1919 is as follows:

"An action or special proceeding may be maintained by the president or treasurer of an unincorporated association, consisting of seven or more persons, to recover any property, or upon any cause of action, for or upon which all the associates may maintain such an action or special proceeding, by reason of their interest or ownership therein, either jointly or in common. An action or special proceeding may be maintained against the president or treasurer of such an association, to recover any property, or upon any cause of action, for or upon which the plaintiff may maintain such an action or special proceeding, against all the associates, by reason of their interest or ownership, or claim of ownership therein, either jointly or in common, or their liability therefor, either jointly or severally. Any partnership, or other company of persons, which has a president or treasurer, is deemed an association within the meaning of this section."

1

2

McKane v. Dem. Gen. Com. of Kings Co., 21 Abb. N. C., 89.

This action was brought by John Y. McKane against The Democratic General Committee of Kings County, naming it in the summons and complaint as defendant, wherein the plaintiff sought to have his right to membership in the defendant established.

The summons and complaint were served on John P. Adams, the president of the defendant, who appeared and interposed a demurrer on the ground that there was a defect of parties defendant, because the defendant committee could not be sued as such in its own name, or in its aggregate capacity, and on the further ground that the complaint did not state a cause of action. The defendant did not otherwise appear in the action. The plaintiff then moved to amend the summons so as to make the title of the action read: "John Y. McKane, plaintiff, versus John P. Adams, as president of the Democratic General Committee of Kings County, defendant;" and to amend the complaint by asserting therein an allegation that the Democratic General Committee of Kings County is an unincorporated political association, consisting of more than seven persons, and that 3 John P. Adams is the president thereof.

4

BARTLETT, J. An examination of the complaint shows that the cause of action, if any, set up therein, is against those persons who comprise the Democratic General Committee of Kings County. Assuming that body to be a voluntary association, within the meaning of section 1919 of the Code of Civil Procedure, it can properly be sued only by making all its members defendants, or by naming as defendant the president or treasurer. Neither course has been pursued by the plaintiff, and this motion presents the question, whether his failure properly to name the defendant is a fatal defect, or whether he can correct it by amendment instead of bringing a new suit.

The Democratic General Committee, as such, has not appeared in the action, but Mr. John P. Adams, who was served with the summons, has interposed a demurrer, on the ground that there is a defect of parties defendant, because the committee cannot be sued as such in its own name or in its aggregate capacity, and on the further ground that the complaint does not state facts

McKane v. Dem. Gen. Com. of Kings Co., 21 Abb. N. C., 89.

sufficient to constitute a cause of action. The motion is opposed 5 by counsel for Mr. Adams, who relies upon two cases in the Court of Appeals as authorities against the power to grant it. The first of these cases is Bassett v. Fish, 75 N. Y., 303, wherein it was held that the complaint could not be amended by striking out the names of defendants who were sued as school trustees, and inserting the name of a corporate board of education to which they belonged. There, however, no attempt had been made to bring the corporation as such into court. Here, on the contrary, the plaintiff has endeavored to bring into court the 6 voluntary association against which he seeks to enforce some right. He has caused the proper officer of that association to be served with process, and has simply omitted to name that officer in the title of the action as president of the association. The other case to which the court has been referred is the N. Y. State Monitor Milk Pan Association v. Remington Agricultural Works, 89 N. Y., 22,* which simply holds that section 723 of the Code does not authorize the court to strike out the name of a sole defendant in an action, and insert in lieu thereof the names of other persons as defendants. But that is not what the 7 plaintiff seeks to have done in this action. The purpose of section 1919 of the Code, is to permit an unincorporated voluntary association to sue or be sued in the name of its president or treasurer. The association and not the officer is the real party in interest. So here, it is the Democratic General

*Rev'g 25 Hun, 475, on the ground that while full authority is conferred by the Code Civ. Pro., § 723, for adding or striking out the name of a person or a party, or correcting a mistake in such name, it does not sanction an entire change of name of the defendant by the substitution of another or entirely different defendant. The court below held that such power was within the discretion of the court under section 723.

In Munzinger v. The Courier Co., Sup. Ct., Gen'l Term, First Dep., Dec., 1894, (to be reported in 82 or 83 Hun), it was held (VAN BRUNT, P. J., dissenting), that where plaintiff had sued a voluntary unincorporated association in its own name, under the belief that it was a corporation and so alleging in his complaint, the court has power under § 723 to allow an amendment of the summons and complaint by changing the title of the action so as to designate an individual as president of the association in compliance with C. C. P., § 1919, and also by changing the allegation that defendant is a corporation, to one that it is an unincorporated association.

Lassen v. Aronson, 29 Abb. N. C., 114.

8 Committee and not Mr. Adams that the plaintiff really desires to sue. But the effect of the statute is to prescribe, not that a voluntary association cannot be sued, but that it cannot be sued except in the name of certain officers, unless the plaintiff chooses to name all the associates individually as defendants. In allowing an amendment, therefore, which shall bring the name of Mr. Adams into the title of this action, the court does not strike out the name of the real defendant, but merely permits a formal correction of the designation which has been employed so as to conform to the requirements of the statute.

9

Inasmuch as the right person was actually served, I think the omission of his name from the title of the action should be regarded simply as a misnomer, and that the court has the power to grant the amendment asked. Since, however it will compel the defendant to change the form of its demurrer, $10 costs should be allowed on this account, as well as $10 costs of motion. Motion granted on payment by plaintiff of $20 costs. Ordered accordingly.

LASSEN v. ARONSON.

New York Superior Court, Special Term, 1892.

[Reported in 29 Abb. N. C., 114.]

1. The failure to comply with the Code Civil Pro., § 1897—providing that in actions for a penalty or forfeiture given by statute, if the complaint is not served with the summons, a general reference to the statute must be indorsed on the summons so served—is fatal to the validity of the service of the summons and leaves the court without jurisdiction over the person of the defendant.

2. Such defect, since it does not appear on the face of the summons, is not remedied by defendant's voluntary appearance.*

Motion by defendant for leave to withdraw his notice of appearance and to set aside the service of a summons in an action for a penalty upon the ground that the summons was served without the complaint and without an indorsement of a

*The contra was held in Bissell v N. Y. Central, etc., R. R. Co., 67 Barb., 385.