Shaw v. . Cock , 1879 N.Y. LEXIS 894 ( 1879 )

Andrews, J.

The cause of action accrued on the 13th of September, 1866, upon the delivery by Trivett to the consignees in Montana Territory, of the machinery and merchandize pursuant to his contract with the defendant, made on the 28th of September, 1865. The cause of action was barred by the statute of limitations on or before the 14th of September, 1872, unless saved by the delivery to the sheriff of the city and county of New York on the 8th of August, 1872, of a summons with an intent that the same should be served, entitled in an action in favor of the plaintiff, against George E. Cock and seven other individuals named, and the Overland Dispatch Company. There was-no actual service of the summons upon any of the defendants named therein within the six years, and no service of the same at any time upon any of the defendants except George E. Cock, who was served July 29th, 1873: Messrs. Van Cott & Winslow, in August, 1873, appeared as attorneys in the action for the defendant Cock' and other of the individual defendants named in the summons, and also for “The Overland Dispatch Company,” and demanded a copy of the complaint. Thereafter, on the 6th of October, 1873, an order was made at Special Term on motion of the plaintiff, on notice to the attorneys who had appeared in the action, striking out of the summons the names of all the individual defendants, and changing it in other respects so as to make the title of the action “Michael Shaw v. George E. Cock, as Treasurer of Butterfield’s Overland Dispatch.” By this transmutation the action, instead of being one in favor of the plaintiff against “ The Overland Dispatch Company,” and eight individual defendants, became an action against a sole defendant not named in the original summons. The amended summons was not served on any one. The order of October 6th, 1873, was served on the attorneys who had appeared for the original defendants, and also a copy of the complaint entitled in the action as it then stood under the order of the Special Term. The same attorneys who originally appeared then appeared for the present defendant, and served an answer setting up, among other defenses, the statute of limitations. It is claimed that the case is within section ninety-nine of the Code, and that the defense of the statute is unavailing for the reason that the delivery of the summons to the sheriff to be served on the 8 th of August, 1872, was, in respect to the defense of the statute, equivalent to the commencement of an action against the defendant on that day.

It is plain from the language of section ninety-nine that it only applies to defendants who are parties to the action constructively commenced by the delivery of the summons to the sheriff at the time of such delivery, or who are made parties before the statute has run against the claim upon which the action is brought. The delivery of a summons to the sheriff will not prevent the running of the statute in favor of persons Avho, although they may be liable upon the obligations upon which the action is brought, are not named as defendants in the summons, and it can make no difference whether the omission was by design or through ignorance, mistake or inadvertence. The commencement of an action against A. upon a cause of action against B. will not arrest the running of the statute against the latter. Where several persons are jointly liable upon contract or otherwise and a suit is brought against a part only of the persons so liable, the court has power under section 173 of the Code to amend the process, pleadings or proceedings by bringing in the omitted parties, but the suit is only commenced as to such new parties when they are brought in by the amendment. If, between the time of the commencement of the suit and the time when the new parties are brought in, the period of limitation has expired, they may plead the statute in bar of their liability, although the defense may not be available to the original defendants. It would be unreasonable in such case to construe the amendment as relating to the time of the commencement of the action so as to deprive new parties of the defense of the statute and their right to plead it is saved without any express reservation in the order of amendment. By section ninety-nine service of the summons on one defendant is the commencement of the action as to each defendant who is a joint contractor or otherwise united in interest with him. and prevents the running of the limitation thereafter against all the defendants named in the summons who stand in the relation mentioned to the defendant served: The question whether the defense of the statute of limitations pleaded by “ Butterfield’s Overland Dispatch” to the plaintiff's claim in this action was a good answer thereto turns upon the inquiry whether that company was a party to the action constructively commenced by the delivery to the sheriff on the 8th of August, 1872, of the summons against the “ Overland Dispatch Company ” and the eight individuals named therein. It may be assumed from the extrinsic facts, that the plaintiff intended to sue the parties liable on the contract made between the plaintiff’s assignor, Trivett, and “ Butterfield's Overland Dispatch ” on the 28th of September, 1865. That company was a joint-stock company organized under that name in pursuance of the laws of this State and having its chief office and place of business in the city of New York. “Butterfield’s Overland Dispatch” was not named as defendant in the summons, and there was nothing upon the face of the summons to indicate that the suit had any relation to the contract with Trivett, and" no complaint had then been filed setting forth the cause of action. “The Overland Dispatch Company,” named in the summons represented a distinct legal entity. A joint stock company had been organized under that name in January, 1866, also having its chief place of business in the city of Now York. Most "of the individuals who were members of “ Butterfield’s Overland Dispatch ” -were also members of “ The Overland Dispatch Company,” and the latter company was organized to carry on business of the same general nature as that carried on by “ Butterfield’s Overland Dispatch.” The plaintiff in his summons designated “ The Overland Dispatch Company ” as defendant. The real party to the contract sued upon was “ Butterfield’s Overland Dispatch,” but that company was not named. It is said that the name of “The Overland Dispatch Company ” was inserted by mistake. Assuming this to be true, it does not avoid the difficulty. The suit was constructively commenced only against the parties who were named as defendants. It is not a case of mere misnomer. It is more like the case of a suit brought against one corporation upon a demand existing against another. The fact that this was by mistake, and that the real intention was to sue the corporation liable, would not, I apprehend, be a ground for holding that the delivery of a summons to the sheriff entitled against the wrong corporation, was the commencement of a suit, within section ninety-nine of the Code, against the real party to the obligation.

I am of opinion that the suit in this case was not commenced againt “ Butterfield’s Overland Dispatch” until that company was brought in under the order of October 6th, 1873. It is not necessary to consider whether this order was Avithin the authority conferred by section 173 of the Code. The defendant subsequently appeared and answered and litigated the case upon the merits. But it stood as a party to the action only from the time it Avas brought in by the amendment, and the defense of the statute was a good answer to the cause of action. Section 175 of the Code has no application to the question here presented. There are no facts bringing it within its provisions.

These views lead to an affirmance of the order of the General Term, and judgment absolute for defendant on stipulation.

All concur.

Order affirmed, and judgment accordingly.