19 N.Y. St. Rep. 793 | City of New York Municipal Court | 1888
The plaintiff served a complaint in proper form, but then summons annexed to it, besides designating the New York Book-Binding' Company, the proper defendant, improperly included the Provident Book Company, the name of another corporation, as defendant. The summons was-not void on accouht of this irregularity, for it was amendable, as the name of the defendant improperly named therein might have been stricken out, leaving the action to proceed against the New York Book-Binding Company alone,(Code, § 723; Gribbon v. Freel, 93 N. Y. 93; Macn. Null. 2, 3, 6;) so that, notwithstanding the erroneous insertion of the name of such other party, the" action was effectually commenced against the New York Book-Binding Company, because that corporation was the person intended to be sued, was properly named in the summons, and actually served with process, (Code, § 416.) The action just referred to, and first commenced, will, for convenience of reference, be called “No. 1.” The summons and complaint in the present-action, which will be designated for like-reference as “No. 2,” were served-upon the mistaken notion that the process first served might be disregarded by an indorsement which was put on the back of the second summons, calling attention to the fact that the first summons was attached to the complaint served with it “by a mere clerical mistake.” Without deciding whether this notice operated as an estoppel against the plaintiff’s further aggressive proceedings in that action, it is clear that the defendant served with the process was not bound to consider that action as at an end; for the notice did not operate as a discontinuance of the action, and did not dispense with the formality of a discontinuance thereof.
The defendant interposed as a defense to this action (No. 2) the plea of the pendency of the action commenced by the service of the first summons, (No,
JBhklich, J., concurs.