#### Julius Lehrer and Adolph Graubart (copartners under the firm name and style of Lehrer & Graubart), Respondents, *v.*Isaac Walcoff and Max Udell (copartners under the firm name and style of Walcoff, Udell & Co.), Appellants.

(Supreme Court, Appellate Term,

April, 1905.)

Parties — New — Brought in by amendment — Mere order insufficient.

An order granted upon a motion made at the close of plaintiffs’ case, making a third person a party defendant without any actual amendment of the pleadings, or any allegation therein relating to him, or any appearance for him on the record, does not make him a party to the record so as to be bound thereby.

Appeal by the defendants' from a judgment of the City Court of the city of New York, entered upon the verdict of a jury in favor of the plaintiffs and from orders amending the judgment, and bringing in a third defendant.

Stern & Reid (Edward W. S. Johnston, of counsel), for appellants.

Louis Diamant (Isaac Siegel, of counsel), for respondents.

Greenbaum, J.

This action was brought to recover damages for the breach of a contract to deliver goods.

The plaintiffs sued Isaac Walcoff and Max Udell, alleging that they were copartners in business under the firm name and style of Walcoff, Udell *&*Co.

The answer alleged that the contract, if any was entered into, was made with the defendants jointly with one Nathan H. Walcoff, and not with the defendants alone, and that the said Nathan H. Walcoff should have been joined as a party defendant. Upon the trial, at the end of the plaintiffs’ case, the court granted a motion, then made, to add Nathan H. Walcoff as a party defendant, and an order to that effect was subsequently made. The judgment which was entered, upon the verdict of a jury in favor of the plaintiffs, for $1,278.36, -was amended so as to read that plaintiffs recover *113“ against Isaac Walcoff, personally, and jointly against Isaao Walcoff, Max Udell and Nathan H. Walcoff, composing the firm, of Walcoff, Udell & Company.”

It may be conceded that the City Court of the city of New York has the power to grant the amendment upon proper application under the provisions of the Code, bringing ia additional parties, but it seems to be settled beyond question that the procedure adopted upon the trial of this action cannot be sanctioned.

The case of Hood v. Hood, 85 N. Y. 561, 580, is decisive upon this point, and the following quotation from that decision, taken from page 580, may he timely: “The mera direction that these parties he brought in immediately did not bring them in. They were not represented on the trial i>y attorney, nor were the defendants afforded any opportunity to answer the amended complaint. The defendants were entitled to set np any defense they might have as against Frank Brothers, and also to have them made parties in such a manner as to bind them by the judgment. The mere verbal order of the court upon the trial, without any actual amendment of the pleadings, or any allegations in the pleadings relating to the new parties, or any appearance on the record for them, or issue joined as ifco them, did not make them parties on the record, so that they would be bound.”

The judgment and order must be reversed, with one hill of costs to the appellants to abide the event, and a new trial granted.

Scott and Levextbitt, JJ., concur.

Judgment and order reversed, with one bill of costs to appellants to abide event, and new trial granted.