#### Morris Isaacs, Respondent, *against*Israel Mintz. Wilbur F. Treadwell, Receiver, Appellant. Hyman Levy, Respondent, *against*Israel Mintz. Wilbur F. Treadwell, Receiver, Appellant.

(Decided January 5th, 1891.)

' Onunotion to set aside levies and sales under executions, on the ground that the name by which defendant was designated in the proceedings, judgments, and executions, was not his real name, it appeared that he was equally well known by either name. *Held,*that although that fact was not alleged in the original actions, the executions were not void, as there was no •misnomer.

Appeal from an order of the General Term- of the City. Court of New York affirming an order of that court.

A motion was made at the Special Term of the City Court, by Wilbur F. Treadwell, as receiver of the property of the defendant, appointed in proceedings supplementary to execution against him, that levies and sales under executions iri these actions against the property of defendant be set aside; and that plaintiffs therein be required to pay over the proceeds of such sales to the receiver; • The ground of the motion was that the name “ Isaac Mintz,” in the proceedings; judgments, and executions in said actions, was a misnomer, the defendant’s real name being “ Israel Mintz,” and. riot “ Isaac and that the sales of his property under process in which he was so misnamed was void. The motion was .denied, and the order entered thereon was affirmed on appeal by the receiver to the General Term. From the order of the General Term the receiver appealed to this court. . .;.'•)

*Carlisle*Norwood, Jr., for appellant.

*Arthur*Furber, for respondent.

*469J. F. Daly, Ch. J.

The City Court found upon the facts before it that the defendant, Mintz, was equally well known by the names Isaac and Israel, and held, therefore, that there was no misnomer in the proceedings and process. There was abundant evidence to sustain this conclusion. The defendant’s wife swore-that some persons called him Isaac, and although she could not recollect any particular person who did so in her presence, the value of her testimony was not thereby destroyed. . The defendant admitted to the deputy sheriff that his name was Isaac. He stated, when served with the summons, that his name was Isaac ; and the affidavit of Hyman Levy says that in Hebrew, the names “ Isaac” and “Israel1’ are interchangeable. The appellant, however, claims that If the defendant were equally well known by both names, that fact should have been alleged in the complaint and the defendant should have been .sued under one of the names with an *alias.*This was not necessary. If a man be known by two names he may be sued by either and process against his . property or his person in such an action may be justified by showing that he was equally well known by both names.

In *Gurnsey v. Lovell*(9 Wend. 319), Savage, Ch. J., says : “ The defendants could not justify the arrest of the plaintiff by a wrong name, though he was the person intended to be arrested, unless he was known as well by one name as the other,” citing *Mead*v. *Haws*(7 Cowen 332), in which he said it was decided in *Shadgett*v. *Clipson*(8 East 328), that the defendant could not justify an arrest of the plaintiff by a wrong name though he was the person intended to be arrested, unless it was shown that he was known by one name as well as the other. And reference was made to the case of *Griswold*v. *Sedgwick*(6 Cowen 456), where Sutherland, J„ cited and followed *Cole*v. *Hindson*(6 Term Rep. 234), in which Lord Kenyon remarked that the defendants were not justified in seizing the goods of Aquila Cole under a *distringas*against Richard Cole ; and that the averment in the plea that Aquila and Richard were the same person did not assist the defendants, as they had not also averred that the plaintiff was known as well by one name as the other.

*470In *Farnham*v. *Hildreth*(32 Barb. 277), all the foregoing cases were cited, and the decision in *Cole*v. *Hindson*quoted ; and Allen, J. says: “ It is well settled that a defendant in an action for false imprisonment cannot justify the arrest of the plaintiff by a wrong name, though he is the person intended to be arrested, unless it is shown that he .is as well known by one name as the other.”

From these cases it appears that even though the defendant be sued by a name not his real one, and his property or his person be taken by process in such a name, yet .in an action for trespass or false imprisonment, such process would be justified by showing that he was equally well known by both names. It is nowhere stated that in the original action both names must be set forth. It is the language used in *Cole*v. *Hindson*in regard to what is necessary in the plea of justification which the appellant here wrongly interprets as holding that there must be the same averment in the original complaint.

The City Court decided correctly, therefore, in holding that the executions were not void because the defendant was named therein as Isaac Mintz and not as Israel Mintz, the court being satisfied that he was equally well known by both names.

The question of fraud was also properly disposed of. It would not be advisable to try such an issue upon a motion. The receiver has his action to set aside the judgments of these plaintiffs on the ground that the debts upon which they were obtained were fictitious, if he is disposed to try that issue. We think he loses no right in that respect by this decision.

The order appealed from should be affirmed, with costs.

Bischoee and Pryor, JJ., concurred.

Order affirmed, with costs.