New York State Monitor Milk Pan Ass'n v. Remington Agricultural Works

89 N.Y. 22 | NY | 1882

The order to amend in this case authorizes the striking out of the name of the defendant and the insertion of the names of three persons as defendants in lieu thereof. Its effect is to continue the action against other and different parties than the one named, thus substituting a cause of action with new and other defendants. Such an amendment is not we think, authorized by any provision of the Code or any of the adjudged cases. Section 723 of the Code of Civil Procedure does not cover any such case. While full authority is conferred for adding or striking out the name of a person or a party, or correcting a mistake in such name, it does not sanction an entire change of name of the defendant by the substitution of another or entirely different defendants. The authorities relating to the question are fully considered in the opinions of the General Term, and it is not necessary to examine them upon this appeal. Although some cases are cited which are supposed to sanction such a rule, they are not well founded and have not received the approval of this court. The cases of Bassett v. Fish (75 N.Y. 304) and Shaw v. Cock (78 id. 194), without citing other cases, are directly in point and settle the question adversely to the claim of the respondent's counsel. Upon the authority of these decisions the General Term erred, and the order reversing the order of the Special Term should be reversed, and that of the Special Term affirmed, with costs.

All concur.

Ordered accordingly.