17 Barb. 424 | N.Y. Sup. Ct. | 1854
Several objections to the recovery below have been made by the counsel for the appellants, two of which, only, I shall notice. I do not think the judgments obtained by Abram Grates against Arba Grates, sen., were void. A summons in each casé was issued, and personally served; and on the return day the parties appeared. The plaintiff in each case made his complaint upon a note, and the defendant, in open ‘
But the justice erred in granting the motion to make A. Grates, jun., a co-plaintiff after the proceedings had been amended on motion of both plaintiffs, by striking out his name. After that, he was no longer a party to the suit, but stood in the same relation to it as any stranger to the record. I doubt the power of the justice to grant the first amendment. Even this court, before the code, in acting at law, though a mistake in the name of a party could have been corrected, could not as a general rule— especially after declaration—change the parties plaintiff. ( Willink v. Renwick, 32 Wend. 608. Com. Co. v. Russ, 8 Cowen, 122. And see Atkinson ads. Clapp, 1 Wend. 71; Roberts v. Bates, 6 A. & E. 778.) In a very few cases, official assignees, co-executors, &c. have been added; and the character of the parties has been added or amended. (Christie v. Bell, 16 M. & W. 669. Baker v. Nearer, 1 Cr. & M. 112. Holland v. Phillips, 10 A. & E. 151. Lakin v. Watson, 2 Cr. & M. 685.) But it was at least very unusual, to add a party. In equity this was often done. And so by the code, parties may be added or struck out in some cases. (§§ 173, 122, 274. Butcher v.
Hand, Cady and C. L. Allen, Justices.]
The defendant did not waive his objections to these amendments by not resisting the motion to amend the complaint, or by going to trial. The amendment was principally as to the cause of action; and the change of the title was the natural consequence of the former error. If the court had been right in restoring the party, that was necessary and proper, and the motion to amend the title of the complaint should have been granted of course. The defendant had objected to the principal error, and if he did nothing to waive or cure that, it was not necessary to preserve his rights, that he should continue to object to every thing that followed, or refuse to make farther defense. (Avery v. Flack, 17 Wend. 87.)
The judgments of the county court and of the justice should be reversed.
Judgments reversed.