Opinion
July 14, 1965
Appeal from the Civil Court of the City of New York, County of Kings, ROSS J. DI LORENZO, J.
Purdy, Lamb Catoggio ( Gerald M. McAllister and Vincent A. Catoggio of counsel), for McAllister Bros., Inc., appellant.
Gerald M. McAllister and Vincent A. Catoggio for McAllister Lighterage Line, Inc., appellant.
Fodera Galardi ( Jack H. Dorfman of counsel), for respondent.
The order should be unanimously reversed, with $10 costs to defendant, and motion to correct pleadings by substituting McAllister Lighterage Line, Inc., as defendant in place of McAllister Bros., Inc., nunc pro tunc, denied. The court was without power to make such order. ( Abrams v. General Financial Corp., 274 App. Div. 756.) Plaintiff's original designation of McAllister Bros., Inc., as defendant may not be regarded as a mere misnomer. The substitution of one defendant for another by order, without provision for service of process on the new defendant, is not sanctioned by CPLR 2001, which continues section 105 of the Civil Practice Act essentially unchanged.
Concur — DI GIOVANNA, GULOTTA and BRENNER, JJ.
Order reversed, etc.