Appeal No. 2 | N.Y. App. Div. | Feb 15, 1935
Order denying plaintiff’s motion to amend the summons and complaint reversed on the law, without costs, and the matter remitted to the Special Term to take proof as to whether or not at the time of service of the summons and complaint in this action on Frank P. Tucker as designated in the affidavit of service the said Tucker was in fact the treasurer of the named defendant, Co-operative Fire Underwriters Association of New York State. If it be found as a fact that Tucker was such officer, then the plaintiff should be permitted to serve the proposed amended summons and complaint, on proper terms, since such relief does not constitute the substitution of a party defendant who has not been brought within the jurisdiction of the court, but may be regarded as a misnomer of the defendant. (Civ. Prac. Act, § 105; Boyd v. U. S. Mortgage & Trust Co., 187 N.Y. 262" date_filed="1907-01-22" court="NY" case_name="Boyd v. United States Mortgage & Trust Co.">187 N. Y. 262; DeWitt v. Abraham, Bros. Horse & Mule Co., 170 A.D. 610" date_filed="1915-12-30" court="N.Y. App. Div." case_name="De Witt v. Abraham Bros. Horse & Mule Co.">170 App. Div. 610; McKane v. Democratic, etc., Committee, 14 Civ. Proc. 126; Munzinger v. Courier Co., 82 Hun, 575" date_filed="1894-12-14" court="N.Y. Sup. Ct." case_name="Munzinger v. Courier Co.">82 Hun, 575.) Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.