Dean v. Gilbert , 99 N.Y. Sup. Ct. 427 ( 1895 )

BRADLEY, J.

By the complaint it is alleged that the plaintiff is an association organized under the laws of the state of New York, doing business, etc. The Ontario Improvement & Gas Company, Limited, is a corporation, and, as such, it is the party in which the alleged right of action exists. The motion to amend the complaint was denied upon the ground of want of power to grant it, and in support of the order are cited Davis v. Mayor, etc., 14 N. Y. 506; Bassett v. Fish, 75 N. Y. 303; New York State Monitor, etc., Ass’n v. Remington Agricultural Works, 89 N. Y. 22. The view here taken is that the rule applied in those cases does not necessarily require the disposition made of the motion in the present case. In the Davis Case the party plaintiff introduced by the amendment was entirely distinct from and had no apparent relation to the original plaintiffs; and that case was determined by the court upon another ground, which was that the resolution or ordinance of the common council of the city upon which the alleged cause of action was founded was void. In the Bassett Case the amendment which was improperly allowed to the complaint substituted the name of a corporation for the names of individuals who were originally the parties defendant; and the reason there given for the conclusion that the amendment was not sustained was that the court had no “jurisdiction of the person of the corporation. It has not been brought into court.” And the same may be said of the New York State Monitor, etc., Ass’n Case. There the purpose of the amendment sought and denied was to strike out the name of the defendant, and insert the names of individuals as defendants.

In the present case the action is apparently brought for the benefit of the Ontario Improvement & Gas Company, which is there described as an association organized pursuant to statute. It seems to have been erroneously described in the complaint as an association, as it was a corporation. The allowance of the amendment sought could be treated as a correction of the name of the plaintiff rather than the substitution of an entirely distinct and different party from that named and referred to by allegations of the complaint. Then the motion for the amendment is not to make any change in the defendants. It is simply to continue the action against them in the name of the plaintiff corporation as a party beneficially interested, and in the complaint described as an association. There seems to be no apparent reason why it is not in the power of the court to permit such an amendment. Code Civ. Proc. § 723; Risley v. Wightman, 13 Hun, 163; Tighe v. Pope, 16 Hun, 180; In re Soule, 46 Hun, 661; Heckemann v. Young, 18 Abb. N. C. 196. In Evoy v. Society (Sup.) 21 N. Y. Supp. 641, the court, in this judicial department, held that an amendment to the summons and complaint was properly allowed which permitted the names of the persons constituting a voluntary association to be substituted for the original defendant as a corporation. The court there remarked that the action appeared to have been brought against the right body of persons, but under the wrong name. It is true that the order in that case directed service upon the persons substituted as defendants by the amendment; but this did not qualify the rule of amendability applied by the court in that case. In the one at bar the amendment sought relates to the plaintiff. The defendants remain the same. It is not seen that they could be surprised to their prejudice by allowing of the amendment which treated the party apparently beneficially interested as plaintiff in the action as a corporation, rather than as an association organized ‘pursuant to the statute; and therefore it was within the power of the court to grant the amendment.

The order appealed from should be reversed, and plaintiff’s motion granted, on payment to the defendants of $10 costs, and without costs of this appeal to either party.

WARD and ADAMS, JJ., concur.