Opinion
January Term, 1901.
Theodore Prince, for the appellant.
W.W. Thompson, for the respondent.
Present — VAN BRUNT, P.J., RUMSEY, PATTERSON, O'BRIEN and McLAUGHLIN, JJ.
There does not seem to be any authority for the order appealed from. If John Sweeney is a claimant of the fund in the hands of the savings bank, certainly his widow, next of kin, executors, administrators or assigns, if any, cannot be such claimants; and section 451 of the Code was not intended to permit the making of persons parties who, under no circumstances, could have any claim or interest in the action. The case of Town of Hancock v. First National Bank ( 93 N.Y. 82) expressly holds that this provision of the Code authorizing a plaintiff who is ignorant of the name of a defendant to designate him in the summons by a fictitious name, implies an action commenced and a defendant sued or intended to be sued whose name is unknown. Therefore, if John Sweeney is a claimant, his personal representatives would not be proper parties to the action; and if John Sweeney is dead, then he would not be a proper party to the action, but his personal representatives would. Under the rule laid down in the case cited there must be some definite allegation of claim which has its foundation in common sense, at least, in order to permit a person to be made a party by a fictitious name under the section in question.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave, however, upon payment of such costs and disbursements to apply upon new papers, if the defendant shall be so advised, to bring in new parties claimant.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave, however, on payment of such costs and disbursements to apply upon new papers, if the defendant shall be so advised, to bring in new parties claimant.