Dimmerling v. Andrews

205 A.D. 855 | N.Y. App. Div. | 1923

Order denying motion to vacate judgment, order of attachment and other proceedings, affirmed, with ten dollars costs and disbursements. We think the cotut had jurisdiction to grant the amendment. The defendants, while not originally designated as trustees, were coneededly the persons who acted as such trustees, and the complaint received by them fairly apprised them of plaintiff’s claim, which was based upon their alleged fraudulent operations in the name of Andrews & Co. Kelly, P: J., Rich and Young, JJ., concur; Kelby, J., dissents on the ground that the summons named the nonresident defendants as individuals and not in their representative capacity; this summons was served by publication. An attachment subsequently issued against the defendants as individuals, and the sheriff thereupon attempted to levy upon property in this State owned by defendants in their representative capacity. The court below-on plaintiffs motion amended the summons, complaint and attachment papers, by adding the defendants as trustees, and judgment was entered against them as trustees only. If the court obtained jurisdiction of the defendants, the amendment was clearly properly granted. Concededly there was no levy on property, belonging to the defendants individually. Hence the court obtained no jurisdiction, and the amendment was improperly granted. Jaycox, J., concurs with Kelby, J.