
    FINK v. MANHATTAN RAILWAY CO.
    
      N. Y. Common Pleas,
    
      General Term;
    February, 1890.
    1. Parties; amendment by striking out.] An order made by the trial term, striking out the name of one of the plaintiffs, who was in fact dead at the time of service of the summons, and allowing the remaining plaintiff to continue the action as sole plaintiff, and to serve an amended complaint, —He Id, proper, although the person moving and claiming to be plaintiff was claimed to be misnamed in the summons in respect to the initial of his middle name, and it was claimed that he was not the person originally intended, and although the record failed to disclose his ownership of any estate in the premises affected by the action. The question of his interest cannot be disposed of on a summary application for dismissal of the complaint based on affidavits.
    2. The same.] Such order may properly be made at the trial under Code Civ. Pro. § 723, and will not be deemed intended to allow the plaintiff to continue as successor in interest of the deceased person who was named as an original plaintiff.
    3. Pleading.] An order made at the trial term which permits the plaintiff to serve an amended complaint is erroneous in so far as it directs the defendant to serve an answer thereto in less than twenty days, as such direction abridges the right of the defendant to demur, and shortens his statutory time to serve his pleading.
    Appeal from an order striking out the name of a person designated as co-plaintiff, and permitting the action to be continued.
    
      A. I. Bmidt, for plaintiff and respondent.
    
      Edwa/rd 8. Rapadlo and Braina/rd Tolies, for defendants and appellants.
   Bisohoff, J.

The pleadings are not presented on this appeal, but it sufficiently appears that this action was brought to obtain an injunction to restrain the operation and maintenance of defendants’ elevated railway in front of the premises Uo. 42 Division street, and to recover damages resulting from such operation and maintenance in the past. Sophie E. Fink and Louis E. Fink were named as plaintiffs in the summons and complaint. The cause was reached for trial at an equity term in December last, when it appeared that Sophie E. Fink had departed this life on August 12, 1888, thirteen days before the service of the summons on defendant. Defendants then moved upon affidavits reciting the death of Sophie E. Fink as aforesaid, and also that the premises had in December, 1875, been conveyed to Louis Fink and Sophie E. Fink his wife as tenants by the entirety, that Louis Fink died May 23, 1882, more than six years before the commencement of this action, leaving said Sophie E. Fink him surviving1, and that the records failed to show the ownership of any estate in the premises in Louis E. Fink, a son and only child of Sophie E. Fink and Louis Fink, her husband, and that said Louis E. Fink was not the person named Louis Fink and designated as plaintiff, that the summons be canceled for want of jurisdiction and the complaint be dismissed. Plaintiff’s attorney in opposition maintained that Louis E. Fink was seized of an estate in the premises in question. The judge at equity term denied defendants’ motion, and plaintiff thereupon moved that Louia E. Fink be permitted to continue this action in his proper name, and also as the successor in interest of said Sophie E. Fink, that the title of this action be amended accordingly, and that said Louis E. Fink, as such plaintiff, be permitted to serve an amended complaint. The order thereupon made granted leave to said Louis E. Fink to amend the title to this action by striking out the name of Sophie E. Fink, as party plaintiff, and allowing him to continue this action as sole plaintiff and to serve an amended complaint on or before December 7, 1889, to which defendants were required to serve an answer before December 16, 1889. From this order defendants now appeal.

The amendment allowed does not introduce a new party plaintiff. It merely permits the action to be continued by a person claiming to be plaintiff in his proper name. The presence or omission of the initial letter of Louis E. Fink’s middle name is of no importance (Franklin v. Talmadge, 5 Johns. 84), and no presumption can arise therefrom either in favor of, or against, the identity of Louis E. Fink with Louis Fink the person named as plaintiff. The similarity of the names however presumptively establish the identity of the persons (Hatcher v. Rochelean 18 N. Y. 86; People v. Smith, 45 Id. 772; Daby v. Ericsson, 45 Id. 786 ; Agate v. Richards, 5 Bosw. 456 ; Jackson v. Orser, 2 Hilt. 99; Lyon v. Brown, 6 Alb. L. J. 161). And though the records may fail to disclose the ownership of any estate in the premises in question, it may nevertheless be that at the time of the service of the summons herein, Louis E. Fink was seized of the whole or some part of such premises. That the records fail to disclose such ownership does not create any presumption against the same, and the question, whether or not plaintiff was possessed at the time of the commencement of this action, of such an interest as will entitle him to a recovery against defendants, forms a material issue which must be disposed of by trial. It cannot be determined by summary application for the dismissal of the complaint, based upon affidavits.

The motion for dismissal of the complaint and cancellation of the summons was therefore properly denied.

The contention of appellant’s counsel that the order-appealed from directs this action to be continued by Louis E. Fink as the successor in interest of Sophie E.. Fink, does not appear well founded upon an inspection of the order. The order recites that plaintiff’s attorney applied for such direction, but its granting clause only allows an amendment of the title by striking out the name of Sophie E. Fink as party plaintiff, and permits Louis E. Fink, the plaintiff, to continue the action, and to serve an. amended complaint. Such an order can properly be made at the trial (Code of Civil Pro. § 723).

Section 393 of the Code of Civil Procedure directs that an action shall be deemed commenced against a defendant when a summons is served on him, and sections 758 and 759 provide for the continuance of an action by the representative or successor in interest of a deceased plaintiff' or defendant. Sophie E. Fink, being deceased at the time of the service of the summons, this action was never commenced as to her, and she could not in any sense have been a party thereto (Paget v. Pease, 17 Civ. Pro. Rep. 234). Obviously then, unless the contrary distinctly appears, the judge at equity term could not have intended to allow this section to be continued inspecting the estate of Sophie E. Fink, by Louis E. Fink as the successor in interest of a deceased plaintiff.

The judge erred however in restricting the defendants. to the service of an answer to the amended complaint, and in directing that service of such answer be made in less than twenty days from the service of the amended complaint. The service of an amended pleading by defendants was necessitated by granting leave to the plaintiff to serve an amended complaint, after service of which defendants may be advised to demur, and their right to plead to plaintiff’s amended complaint should not be restricted to the service of an answer. Section 520 of the Code of Civil Procedure provides that a copy of each pleading, subsequent to the complaint, may be served on the attorney for the adverse party within twenty days after service of a copy of the preceding pleading. In the present case leave was not granted to defendants to plead to the amended complaint, as a matter of favor, and the time secured to them by statutory provision to plead to the last preceding pleading of the adverse party could not therefore be abridged.

The order appealed from should be modified by permitting defendants to serve an answer or demurrer within twenty days after the service of the amended complaint, and directing that this cause be stricken from the present equity calendar of this court.

Order appealed from modified as above, and affirmed as modified. No costs of this appeal to either party.

Labbehoee, Ch. J., concurred.  