#### Samuel Corn, Respondent, *v.*Adolph Heymsfeld, Appellant.

(Supreme Court, Appellate Term,

February, 1912.)

Municipal Courts — Municipal Court of the city of New York — Misjoinder of parties — Review — General power of appellate court.

Where, in the summons and complaint in an action brought in the Municipal Court of the city of New'York, the defendant was designated as “Abraham” instead of “Adolph” Hemysfeld, the person intended to be and who was served with the process, and . judgment was taken by default, the court, under section 723 of the Code of Civil Procedure expressly made applicable by sectiqn 20 of the Municipal Court Act, has power to correct the mistake and amend the summons and other papers and the judgment roll by substituting “Adolph ” in place, of “Abraham.”

. Lehman, J., dissented.,

*479Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of-Manhattan, fifth district, rendered in favor of the plaintiff and from an order denying his motion to vacate and set aside a judgment rendered against Abraham Heymsfeld as defendant and granting the counter motion of the. plaintiff to amend the summons and other papers and judgment roll by substituting the Christian name “Adolph ” in place of “Abraham ” as the name of the defendant.

Hicholas A. Heymsfeld, for appellant.

Wesselman & Kraus (Bertram L. Kraus, of counsel)-, for respondent.

Seabury, J.

The chief point to be kept in mind in determining this appeal is that the person who was served with process is the person against whom judgment has been rendered. Another fact of capital importance is that the person served knew that he was the person intended to be served. The defendant, Adolph Heymsfeld, is coneededly the person to whom the goods for which the plaintiff seeks to recover were sold and delivered; and Adolph Heymsfeld when he purchased the goods was doing business under the name of “A. Heymsfeld.”- In the caption of the summons and complaint, the plaintiff described the defendant as “Abraham ” instead of “Adolph ” Heymsfeld. In so doing the plaintiff made a mistake in the defendant’s first náme. ' This mistake the court below has allowed to be corrected under the ample authority conferred by section 723 of the Code of Civil Procedure which is expressly made applicable to the Municipal Court. Mun. Ct. Act, § 20; Code Civ. Pro., § 3347, subd. 6. Section 723 specifically authorizes the court to amend any process, pleading or other proceeding “ by correcting a mistake in the name of a party.” This is precisely what ihe court below did, and it does not seem to be disputed that such an Amendment was “ in furtherance of justice.”

The party whose surname was correctly designated in- the summons was served, and he -was apprised that he was the *480party the action was intended to affect. Service under these circumstances gave the court jurisdiction.

In Stuyvesant v. Weil, 167 N. Y. 421, the defendant’s true name was “ Mary J. Stockton,” and the summons which was served upon her described her as “ Emma J. Stockton.” The court said: “ The object of the summons is to apprise the party defendant that the plaintiff therein seeks a judgment against him so that he may take such steps as may seem advisable to protect his interests, and in order to assure its coming to his attention the statute requires personal service of the summons to be made when it is possible to do so. It may happen, as in this case, that the defendant’s name is riot correctly stated in the summons, and in such case it is the duty of the court, when properly moved, to determine whether, notwithstanding the error, the defendant was fairly apprised whether he was the party the action was intended to affect, and, if the answer'of the court be in the affirmative, its determination must be that the court acquired jurisdiction.”-

Applying the rule declared in Stuyvesant v. Weil, supra, to the facts of this case, it is plain that the court below properly allowed the amendment. Apart from the fact that the present case arose in the Municipal Court, there is no distinction between the two cases. The attempt- of the defendant to make it appear that the plaintiff intended to sue Abraham Heymsfeld, who was the father of the defendant and who died prior to the time of service and to whom the plaintiff never sold' goods, is too shallow to be .entitled to serious consideration.

Unless the fact that the present action arose in the Municipal Court and Stuyvesant v. Weil arose in the Supreme Court is a material distinction, that case is 'authority for the practice which has been adopted in this case.

Section 27 of the Municipal Court Act provides that a summons in the Municipal Court *“*must be addressed to the defendant by name, or, if his name be unknown, by a fictitious name.” It is claimed that in view of this section the error in the defendant’s name was jurisdictional.' Substan*481tially a similar provision is applicable to' all courts of record. Code Civ. Pro., § 451. In either a court of record or an inferior court, service is necessary to enable' the court" to acquire jurisdiction. Jurisdiction depends upon the fact of service. "When that is accomplished, jurisdiction is acquired and the court is authorized to correct errors or mistakes in the name of a party. If the defendant’s name was not correctly designated, that was án error which could be corrected, whether it occurred in a court of record or in an inferior court. It is quite true that section 721 of the Code of Civil Procedure is applicable only to courts of record; but the amendment which the court made in Stuyvesant v. "Weil was made, as stated in the opinion of the court, “ in pursuance of the authority conferred by section 723 of the Code of Civil Procedure.” That section is applicable to the Municipal Court of the city of Hew York. The history of section 723 of the Code-, so clearly traced in the opinion of Mr. Justice Lehman, makes very clear the legislative purpose *“*to stop the sacrifice of things of real substance upon the altar of mere technicality.” Stuyvesant v. Weil, *supra,,*gave effect to this legislative purpose, and in so doing it brushed aside a mass of cases which had so obscured the beneficent purpose of section 723 that for all practical purposes it might just as well not have been enacted. Stuyvesant v. Weil, *supra,,*has cleared the way and made it possible to apply a rational rule to this case which will prevent a fraud from being successful and do justice to the plaintiff. Merely because of the error in the name of the defendant, *yre*are not bound to turn this plaintiff out of court empty-handed and to deny him the justice which he seeks.

The judgment appealed from should be affirmed, with costs.

Page, J., concurs.

Lehman, J. (dissenting).

The defendant, Adolph Heyms-

feld, was served with a summons and complaint in an action which the plaintiff attempted to bring. The summons and *482complaint named Abraham Heymsfeld as the defendant. Abraham Heymsfeld was the deceased father of Adolph Heymsfeld. The action was for goods sold and delivered, and all the transactions which were the basis of the action were had with Adolph Heymsfeld doing business under the name of A. Heymsfeld. Adolph Heymsfeld disregarded the service of the summons and complaint in which Abraham Heymsfeld was named as defendant and failed to appear upon the return day. Thereupon the plaintiff presented an affidavit that the summons and complaint had been served upon Abraham Heymsfeld, the defendant named therein, and obtained a judgment against him. Thereafter Adolph Heymsfeld, as executor of Abraham Heymsfeld, moved to vacate this judgment, fearing that it might operate as a charge against the estate of Abraham Heymsfeld. Hpon proof of these facts the trial justice directed or advised the plaintiff to make a counter motion for the amendment of the summons and complaint and the judgment changing the name “Abraham ” Heymsfeld to “Adolph ” Heymsfeld and then entered an - order granting the counter motion. The defendant appeals from this order on the ground that no power exists in the Municipal Court to make such an amendment.

If such power exists, it is by virtue of section 723 of the Code of Civil Procedure. That section, in somewhat different form, was originally section 149 of the “ Act to simplify and abridge the practice, pleadings and proceedings of the courts of this state ” (Laws of 1848, chap. 379): “ The: court may at any time in furtherance of justice and on such terms as may he proper amend any pleading or proceeding by adding or striking out the name of any party, or a mistake in any other respect, or by inserting other allegations material to the case, or by conforming the pleading or proceeding to the facts proved, whenever the amendment shall not change substantially the cause of action or defence.” The history of this section is illuminative upon the intent of the Legislature to which the courts must, if possible, give due effect. The act was the natural result of the democratic *483movement which had achieved such control of the Legislature and executive branches of the government that laws could" fairly be said to be made and executed for the benefit of the people and now sought to obtain the same result in the judicial branch by the abolition of technicalities which hampered the ideal administration of justice. The commissioners who framed that -statute reported to the Legislature upon this part of the act that “ no person under our system need be turned out of court or lose his remedy for variance of any kind. The first three sections provide for variances discovered at the trial and the rest provide for a means of amendment of the most liberal character, as liberal indeed as we could devise.” In spite of the fact, however, that the system of amendment was as liberal as the commissioners could devise, they learned within a year that the construction of the statute rested . upon a conservative body of, judges whose conception of an ideal justice was somewhat limited by their training -in the technicalities of the law and by their study of the opinions of the master minds of our jurisprudence, who saw in the intricate system of pleading and practice that had grown up under the common law a weave of perfect design. As' a result, in 1849, the commissioners presented to the Legislature a second report, amending section 149 in the following respects: by inserting the words, *“*or by correcting a mistake in the name' of any party,” which had been omitted from the original statute by clerical error, and by omitting the qualification, *“*whenever the amendment shall not change substantially the cause of action or defence.” The report states that this qualification “ is now omitted in consequence of an erroneous construction given'by one of the judges of the Supreme Court, by'which the cause of action is construed to mean the relief demanded instead of the injury which gave rise to the action. *There is so little danger of the courts going too far in allowing amendments that the qualification can he omitted without*dangerThese amendments were enacted and became part of section 113 of the Code of 1849. It appears, however, that though.in 1849 the Legislature thought that the quali*484fication could be omitted without danger, after two years’ experience, on further thought, it inserted again the omitted qualification. Act of July 10, 1851. In 1852 the section was again amended to substantially the same form in which it at present exists, except for the amendment of 1879 which is not material to the question at present under consideration.

There is ho. doubt in my mind but that under this section the court has the widest possible powers of amendment of any pleading, process or proceeding. There is, however, one necessary qualification, viz., no court can order an amendment unless it has jurisdiction of the subject-matter and .parties. Before the court can act in any way, it must acquire this jurisdiction. . “ Comprehensive as is the scope of section 723 of the Code, it cannot embrace a case of which the court has not jurisdiction nor make valid what is void.” Schoellkopf v. Ohmeis, 11 Misc. Rep. 253. In this case the defendant, Adolph Heymsfeld," has never appeared nor submitted to the- jurisdiction of the court, for his motion made as executor of Abraham Heymsfeld cannot be regarded as an appearance in his individual -capacity. The real question, therefore, in this ease is not whether the court has power under section 723 of the Code to permit the amendment in a summons of the name of the defendant, but whether the court has obtained any jurisdiction of the person of Adolph Heymsfeld, by service upon him of a summons and complaint in which the defendant is named as Abraham Heymsfeld. The plaintiff claims that this question has been authoritatively decided by the Court of Appeals in the case. of Stuyvesant v. Weil, 167 *N.*Y. 421. Previous to that decision the trend of opinion in our courts was that no substantial amendment in the name of a defendant in the summons could be made unless the defendant thereafter appeared. The earlier cases were, however, swept away by that decision. *“*Their foundations were had long before sections 721 and 723 of the Code came into existence, as marking features of a distinct legislative policy to stop the sacrifice of things of real substance upon the altar of mere technicality and hence a discussion of them can serve no useful purpose.” *485That decision, however, is not directly in point in regard to the question before us.- In that case the action was brought in the Supreme Court, and in this case the action is brought in the Municipal Court. Aside from the differences recognized by our system of law between the presumptions that can be made as to the jurisdiction of courts of record and of courts not of record, section 72-1 of the Code is expressly made applicable only to courts of record; and, if by that section the technicalities of the law are swept aside as to courts of record, the statute fails to touch the courts .of limited statutory jurisdiction. While the Code provides that actions are commenced by the service of a summons, section 721 provides that “ In a court of record * * "x" the judgment shall not be stayed, nor shall any judgment of a court of record be impaired or affected by reason of either of the following imperfections, omissions, defects, matters, or things, in the process, pleadings or other proceedings: (1) For want of a summons or other writ; (2) For any fault or defect in process.” This section of the Code appears for the first time in the Code of 1876. ' It marks a distinct advance in the abolition of technicalities. The .earlier Code provided for the amendment of all errors but left open the .question of when and how the court acquired jurisdiction. The new provisions inserted in the Code of 1876 took note of the fact that the courts still applied technical rules as to the manner in which they obtained jurisdiction and they destroyed these technicalities in regard to the jurisdiction of courts of record. Thereafter courts of record could no longer consider whether or not a summons was served upon the defendant in the manner provided by statute, for the statute itself commanded that its judgments should not he impaired by any defect in the summons or even by the want of the summons. A court of record has jurisdiction, regardless of any technical omissions, provided the substantial right of the defendant to be apprised of the proceedings and to contest them in court is preserved. The jurisdiction of the Municipal Court is, however, limited and is acquired only where *486the preliminary requirements of the statute have been complied with. In that court an action must be begun by service of a summons “ addressed to the defendant by name, or if his name be unknown, by a fictitious name.” If we disregard this provision of the statute, we disregard not only the technical and well-estalished rules of the common law, but we also, in my opinion, disregard the plain command of the Legislature.

In the case under consideration it appears from the affidavits presented in behalf of the plaintiff by his attorney *“*that all the transactions had herein were had with one A. Heymsfeld of Ho. 79 and 83 Fifth Avenue. Upon investigation- the City Directory showed that there was an Abraham Heymsfeld and an Adolph Heymsfeld at that address. That one of the letters written plaintiff in the controversy had with regard to the sale of the goods, the subject of this action, probably with the intent to deceive the plaintiff and to mislead the plaintiff, was signed ‘A. Heymsfeld per Adolph ■ Heymsfeld.’ Deponent, not then aware that said Abraham Heymsfeld was dead, naturally concluded Fat the person who had purchased the goods wa,s Abraham Heymsfeld by reason of the signature at the foot of the aforesaid letter.” Upon this statement it clearly appears that the plaintiff knew of the existence of the defendant Adolph Heymsfeld and knew his name; but, deceived by his acts, he thought that he had a cause against another person who was in fact no longer living. ■ He served upon the defendant a summons directed to a deceased person of another name and not to this defendant. This defendant was apprised of the fact that the plaintiff was deceived.as to the correct defendant but not that an action had been begun against him. If the summons had contained merely an error in the name of the person to whom it was directed, possibly the court would have obtained jurisdiction over a defendant served with the summons who was duly apprised that an action was begun against him in spite of the error in'the name; but, where the summons is directed by name to a person living or dead, *487actual or fictitious, and is served upon another person, the court fails.to obtain jurisdiction in the action, for no summons has been served upon the defendant addressed to him by name. • '

Judgment affirmed, with costs.