
    The People ex rel. Frank Liatto, Relator, v. Thomas J. Dunn, as Sheriff, etc.
    (Supreme Court, New York Special Term,
    April, 1899.)
    Summons — Suing one by a fictitious name.
    Where a plaintiff, by his summons, states that the surname of a defendant is Litto but that the Christian name of “ Joseph ” assigned to him is fictitious, he has no right, after judgment in his favor by default, to arrest on execution Frank Liatto, as he must abide by his statement that the last name of the defendant was Litto.
    Application for discharge of Frank Liatto on a writ of habeas corpus.
    Other facts appear in opinion.
    Bachrach & Levy (Moses I. Falk, of counsel), for motion.
    L. W. Harburger, for Adolph Teitilbaum, opposed.
    Philip J. Britt, for Thomas J. Dunn, sheriff.
   Truax, J.

Section 2884 of the Code of Civil Procedure provides that where the plaintiff is ignorant of the name or part of the name of a defendant, that defendant may be designated in the summons by a fictitious name, or by so much of his name as is known, adding a description to identify the person intended. In this case the plaintiff saw fit to designate the defendant by the name of Joseph Litto and to state in the summons that the first name was fictitious, the real name being unknown to plaintiff. The plaintiff obtained judgment in the above-named action and has issued execution thereon and arrested one' Frank Liatto. The judgment was obtained by default. Under this judgment the plaintiff had no right to arrest Frank Liatto. The plaintiff herein claimed that the surname of the defendant was Litto and stated that the only part of the defendant’s name that he did not know was his Christian name and he must stand or fall by the correctness of his position in that respect.' Gannon v. Myars, 11 Civ. Pro. 187.

Writ is sustained, with costs, and the prisoner discharged.  