#### James P. Tilley et al., Respondents, *v.*The Beverwyck Towing Co. and Samuel D. Coykendall, Appellants.

(City Court of New York, General Term,

December, 1900.)

City Court of the city of New York— Cannot substitute a new defendant after judgment.

Where an action has been tried and judgment entered in the Gity Court of the city of New York, that court has no power subsequently to amend the records, the judgment and the proceedings by substituting an individual for the original defendant, a foreign corporation.

Appeal from an order made herein, at Special Term, on September 14, 1900, directing “ that the said Samuel D. Coykendall he, and he is hereby substituted as a party defendant in this action in the place and stead of the Beverwyck Towing Company, and that the records, judgments and proceedings in this action be changed accordingly, and that the said Samuel D. Coykendall be, and he is hereby directed to pay the said plaintiffs the judgments entered herein. The clerk of this court is hereby directed to change and amend the record and judgment docket herein accordingly.”

Amos Van Etten, for appellant Towing Co.

Reed *&*Reed, for appellant Samuel D. Coykendall.

Hyland & Zabriskie (Kelson Zabriskie, of counsel), for respondents.

Schuchman, J.

On August 31, 1896, a summons with notice was served in this action, directed to the Beverwyck Towing Company, which was made defendant in the action. Thereafter, a complaint was served, stating a cause of action as follows:

I. The defendant is a foreign corporation, created under the laws of the State of West Virginia, and owns the steam towboat “ Syracuse ”.

H. That on May 25, 1896, plaintiffs’ boat, the “ M. F. Hamm. ” was taken in tow by defendant, under an agreement for a valuable consideration between the plaintiffs and the defendant, to tow-said boat and cargo of ice from Van Wie’s Landing, on the Hudson, river, to Hew York city.

*381III. Said -steam towboat was being operated by the agents, servants or employees of the defendant.

TV. That thereafter the boat and cargo o-f ice were injured, to the damage of the plaintiffs, $1,750.

The answer admitted that the defendant was a foreign corporation, and the owner of the towboat “ Syracuse ”. It also admitted that the defendant took in tow the plaintiffs’ boat, denying, however, any negligence. The issues thus raised were tried in this court, and resulted in a judgment of $1,126.02 in favor of plaintiffs. Only the cause of action alleged in the complaint can be proved at the trial and none other. The question on this motion is whether, when an action has been commenced against a defendant, issue joined, trial had, and judgment entered, the court can substitute another defendant in the place of the original one. It is authoritatively settled that the court has no power to make the order appealed from. A judgment in an action, where the court rendering it has jurisdiction of the parties and the subject-matter, is final, until, in some of the modes of review known to the law and practice, it has been reversed. Fisher v. Hepburn, 48 N. Y. 41; N. Y. S. M. Milk Pan Assn. v. Remington Agricultural Works, 89 id. 22; Van Cott v. Prentice, 104 id. 45-57. This court has no equitable jurisdiction. Lawrence v. Lawrence, 100 N. Y. St. Repr. 393. The case of Louisville *&*Nashville R. R. Co. v. Schmidt, 177 U. S. 230, decided April 9, 1900, proceeded upon the equitable jurisdiction of the court, and was based upon the practice of the law of the State of Kentucky, and not upon the practice as established by the above authorities in the State of New York. Where there is merely a misnomer, or some defect in the designation, but not a substitution or change of the party, the amendment will be allowed. Munzinger v. Currier Co., 82 Hun, 575.

Order appealed from reversed, with costs and disbursements, and motion denied, with $10 costs.

O’Dwyer, J. (concurring).

I agree with Judge Schuchman in holding that the effect of the order appealed from is to substitute another party as defendant instead of a mere change of name, as claimed by the respondents, and hence the court was without power to make the order.

Order reversed, with costs, and motion denied, with $10 costs.