19 Misc. 2d 916 | N.Y. Sup. Ct. | 1959
Plaintiff moves for an order directing that the summons in the above-entitled action be amended, changing the name of the defendant from Pyramid Crane Co. to Pyramid Cranes Co., Inc.
Action was commenced by the service of a summons only. The motion is occasioned by defendant’s refusal to make a general appearance. The defendant contends that the relief under section 105 of the Civil Practice Act would, in the circumstances here, result in a substitution of a new party not a party to the action, and not in the correction of a misnomer. However, the question is whether the defendant was fairly apprised by the summons that it was the party intended. The summons was admittedly served upon an officer of the corporation after difficulty in effecting such service upon an officer and after delivery of the summons to the Sheriff to effect such service. The Statute of Limitations has now run and the claim in suit is barred.
Defendant is actually being sued as a corporation, and heretofore was sued by another in an action in which the defendant was named as in the summons which plaintiff now seeks to amend. In that action, the defendant answered and was defended by its insurance carrier. Indeed, the corporation knew it was served with the summons in this action and that it involved the insurance coverage likewise involved in the other action, and it did deliver the summons to its insurance carrier. The latter refused to defend, and accordingly, the defendant, the statute having run, insists upon asserting a special appearance and resisting the motion. It urges that it was its duty to deliver the summons to the insurance carrier but it was not its duty to permit an appearance in this action by counsel for its insurance carrier any more than it was its duty to appear in the other action, unless it was in fact fairly apprised that it was the defendant intended. This the court finds to be the fact, and the motion is granted, with leave to the defendant to appear.
Settle order.