Opinion
November, 1907.
Quigg, Bostwick Coleman (George Thomas, of counsel) for plaintiff and motion.
John T. McGovern, for defendants Camman.
Frayer, Stotesbury Gregg, for defendant Fish.
This is an application to correct a mistake in spelling, in the name of the defendants Cayce and Fish, and, under the facts disclosed by the motion papers, there is ample authority for granting it. Stuyvesant v. Weil, 167 N.Y. 425; Holman v. Goslin, 63 A.D. 204; Boyd v. U.S. Mort. Trust Co., 94 id. 413; Ward v. Terry Tench Cons. Co., 118 id. 80. The defendant Fish is sued as "Edmond" Fish, whereas his correct name is "Edmund" Fish, and the correct spelling of the name of the defendant sued as "Cracy" is "Cayce." The former has answered, but the latter has neither answered nor appeared. The defendant Cayce is not represented upon the motion, but on behalf of some of the other defendants it is urged that the alleged service by publication, upon a person described therein as Arthur B. Cracy, did not give the court jurisdiction of a person whose name was Cayce. Cayce is sought to be held as a member of the firm of Camman Co., who are stock brokers in the city of New York, in an action brought by the plaintiff in her representative capacity to compel an accounting for certain funds alleged to have belonged to the estate of Ferdinand Hirsch, deceased, which funds, it is alleged, were or came into the possession of the firm of Camman Co. subsequently to the death of said. Ferdinand Hirsch, on July 13, 1901. An order of publication was obtained and filed on September 11, 1907, and, pursuant to its direction, a copy of the summons, complaint and order of publication was mailed, on September 11, 1907, to Arthur B. Cracy, at 29 Broadway, New York city, where the firm of Camman Co. have an office. That the envelope containing the papers was opened by Cayce is evidenced by the return of the envelope to the plaintiff's attorney on November 8, 1907, by the post-office department, undelivered, but with the wrapper, in which said papers were inclosed, broken subsequently to the time of mailing, and marked: "Opened by mistake but not read, Camman Co., 29 Broadway." It is alleged in the moving affidavit that the New York Stock Exchange directory includes Cayce's name among those who constitute the firm of Camman Co. He does not deny such membership, nor does he deny that he received and opened the envelope referred to. Under all these circumstances it may fairly be held that he had notice that the action was against him as one of the members of the firm of Camman Co., and he was, therefore, called upon to act, and the court acquired jurisdiction to render such judgment as the plaintiff was entitled to. Holman v. Goslin, supra. It is further contended that the plaintiff's alleged cause of action had already been barred by the Statute of Limitations the day preceding the first publication of the summons on September 12, 1907, but since such objection can be taken only by answer (Code Civ. Proc., § 413), it need not be considered upon the present motion. The motion should, therefore, be granted, but without costs.
Motion granted, without costs.