
    Julia S. Boyd, Appellant, v. United States Mortgage and Trust Company, as Substituted Trustee under the Will of Matthew Byrnes, Deceased, and Others, Respondents.
    
      Amendment of the title of an action by striking out after the defendant’s name the words “ as substituted trustee under the will of Matthew Byrnes, deceased’’ — Statute of Limitations.
    
    Tile Special Term lias power, prior to the trial of an action brought against the United States Mortgage and Trust Company "as substituted trustee under the will of Matthew Byrnes, deceased,” to amend the title of the summons and complaint by omitting therefrom the words “ as substituted trustee under the will of Matthew Byrnes, deceased,” notwithstanding that the Statute of Limitations would be a bar to a new action brought against the United States Mortgage and Trust'Company in its individual capacity.
    Van Brunt, P, J., dissented.
    Appeal by the plaintiff, Julia S. Boyd, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 15th day of May, 1903, denying the plaintiff’s motion to amend the summons and complaint herein by striking out in the caption the words 1 “ as substituted trustee under the will of Matthew Byrnes, deceased,” after the words “United States Mortgage and Trust Company.”
    
      Howa/rd Taylor, for the appellant.
    
      Theodore H. Lord, for the respondent trust company.
   Patterson, J.:

This is an appeal from an order denying a motion made by the plaintiff to amend the title or caption to. the summons and complaint in this action, which was brought against a corporation, the United. States Mortgage and Trust Company, as substituted trustee under the will of Matthew Byrnes, deceased,” and others, to recover damages for personal injuries which the plaintiff alleges she suffered by falling into an open space in the flooring of a building belonging to the defendant corporation while she was being conducted through said building. She also alleges that in consequence of darkness the open space cotild not be seen, and that it was through the negligence of the defendants that such space was left open and unguarded. Issue was joined in the action about the month of October, 1900. On May 8,1903, the cause not having then been brought to trial, the plaintiff’s attorneys, conceiving that the action was improperly entitled and that the liability sought to be enforced was one existing against the United States Mortgage and Trust Company, not in its representative capacity but directly, made this motion.

It would seem that when the complaint was drawn it was framed upon what was decided in Schwab v. Cleveland (28 Hun, 458). It was subsequently held in Keatmg v. Stevenson (21 App. Div. 604) that trustees of an express trust in real estate, charged with the duty of keeping premises in repair, are, by virtue of the legal title vested in them, liable personally, at least in the first instance, and not in their representative Capacity, for the failure to keep the premises in repair. It was to meet the ruling in the last-mentioned case that this application was made. It was also held in that case that the court at the trial had no power to allow an amendment of the complaint to change the action from one to enforce a liability as charged in the complaint, to a liability in another and unpleaded relationship, and that furnishes another ground for moving for leave to amend before the cause was brought to trial.

That the court had the power to grant leave to amend we think follows from what was held in Hatch v. Central National Bank (78 N. Y. 487), and we are of opinion that the facts presented to the court below in the case at bar should have induced it to exercise its discretion to grant, instead of to deny the motion. Ho change is sought to be made of a defendant. The corporation is the same; the negligence complained of is attributed to ' it; no modification whatever of the facts constituting the cause of action is sought, and the complaint in its entirety will stand precisely as originally drawn. The amendment is t.o correct a mistake in the designation merely of the defendant corporation. It was held in Tighe v. Pope (16 Hun, 180) that an. application to change an action brought against the defendant as administratrix to. one brought against her personally is such a change as is authorized by section 723 of the Code of Civil Procedure, and. in Munzinger v. Courier Co. (82 Hun, 575) the action was originally brought, against the Courier Company ” and an. amendment was allowed so-as to change it to one against “ George Bleistein, as President of the Courier Company.” . There .being no question of the identity of the party, no- change in the facts con- ■ stituting the cause of' action, and no deprivation of the right of. the •defendant to-insist upon substantial defenses to the merits, there seems to be no good reason why, in furtherance' of justice, the amendment should not have, been allowed. . (Stuyvesant v. Weil, 167 N. Y. 421.)

The principal objection urged to granting the plaintiff’s application, and that which seemed to prevail with the court' below, is, that by allowing the amendment, the defense of the Statute, of Limitations is cut off.. In Quimby v. Claflin (27 Hun, 611) it was held that a cause of action barred by the Statute of Limitations should not be allowed to be inserted as an. amendment. That was a case in which the. court refused to allow an entirely independent, separate and additional cause of action barred by the statute to be inserted by way of amendment in the complaint. The Court of. Appeals in that case dismissed an appeal from the General Term, but' did not review its decision. (91 N. Y. 656.) It was held, however, in Hatch v. Central National Bank (supra) that, a complaint might be amended even after judgment, although the Statute of Limitations would apply to the claim as set up in the amended complaint, and that an amendment' which would prevent the application óf the defense of the Statute of Limitations is allowable. It was; .also so held in Truman v. Lester (71 App. Div. 612, citing Deane v. O’Brien, 13 Abb. Pr. 11; Eighmie v. Taylor, 39 Hun, 366).

We think the order was erroneous and that it should be reversed, with ten dollars costs and disbursements, ■ and that the plaintiffs motion to amend the caption of the summons and complaint should be granted, without costs.

O’Brien, McLaughlin and. Laughlin, JJ., concurred; Van Brunt, P. J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.  