
    John P. Magovern et al., Resp’ts, v. Evolin B. Robertson et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 16, 1891.)
    
    1. Pleading—Amendment—Power of referee.
    Under §§ 723 and 1018, Code Civ. Pro., a referee has power to amend . the summons and complaint by adding a party defendant.
    2. Same—Plea of non-joinder.
    A plea of non-joinder of a defendant is answered by the fact that his name appears in the judgment as entered.
    
      Appeal by the defendants from a judgment entered upon the report of a referee in Chautauqua county.
    
      A. C. Pichard, for app’lts; W. H. Henderson, for resp’ts.
   Corlett, J.

About the 3d day of May, 1881, the defendants entered into an agreement in writing of which the following is a copy:

“ Memorandum of an agreement, made and entered into this 30th day of April, 1881, by and between Evolin B. Robertson, of the village of Mayville, Chautauqua county, M. Y., of the first part, and M. Mattison, W. B. Martin, 0. H. Johnson, Oren Stoddard, James Moon, W. Holt, A. C. Pickard, H. D. Stoddard, W. Morthrop, Jr., D. H. Matthews, John Morthrop, A. M. Rinehart, Jackson & Hollenbeck, W. H. White, Mark Jones, J. H. Wood, J. W. Broadhead of the town of Busti, said county, of the second part, Witnesseth :
“That for and in consideration of the covenants hereinafter expressed, the said party of the first part hereby covenants and agrees to and with the said parties of the second part, to put a stock of dry goods, groceries, hats, caps, boots and shoes, etc., in what is known as the John R. Robertson store building, situate in Busti Village ; said stock to be at least of the value of $3,000, to be replenished from time to time as it runs below the amount, said party of the first part to procure the services of John R. Robertson to manage said store and devote his time thereto to the interests of the business. The parties of the second part agree to endorse the paper of the said party of the first part to the amount of $2,000, which sum is to go into the business and the parties of the second part are to have an interest at all times in the goods of said store to the amount of their endorsement, subject, however, to no liability except such endorsement At the end of one year, the party of the first part is to cause an invoice of the goods on hand to be taken in the presence, if required, of two of the parties of the second- part, and the net profits of said business, including all commissions for buying hides, butter, cheese, wool and other products received by said manager, and after deducting insurance on goods, fuel, lights, additional clerk hire, freights, and other necessary expenses of the business, to be divided as follows:
“ Two-thirds of said net profits to belong to the party of the first part in consideration of her capital and management of said business through said John R Robertson and the use of said store building; and the other one-third of said net profits are to be paid to the said parties of the second part pro rata in consideration of their said endorsement and their general interest in the business. It is further stipulated by and between the parties that at any time previous to the expiration of one year, when a majority of the parties of the second part shall make a request in writing to the effect, the party of the first part shall cause an invoice of the stock of goods on hand to be taken in the presence of two of the parties of the second part, and if it be ascertained that the business is sustaining any considerable loss, and the said parties of the second part so demand, the party of the first part shall turn over sufficient amount of said goods to secure said parties of the second part against any liability on account of said endorsement, or relieve said parties of the second part from said endorsement by causing said endorsed papers to be cancelled. And it is further agreed by and between the parties that if, at the end of one year, it is ascertained that there has been a profit in said business, and the party of the first part so require, the provisions of this contract shall extend another year; but if the party of the first part desires to continue said business without the aid •of said endorsement, then this contract from and after that date becomes abrogated. Said parties to this contract are to do what they reasonably can to make said business a success.

In witness whereof, we have hereunto set our hands and seals this 29th day of April, 1881.

“ Evolin B. Robertson, [l. s.]

M. Mattison, [l. s.]

W. B. Martin, [l. s.]

C. H. Johnson, [l. s.]

Oren Stoddard, [l. s.]

James Moon, [l. s.]

W. Holt, [l. s.]

A. 0. Pickard, [l. s.]

R. D. Bush, [l. s.]

H. D. Stoddard, [l. s.]

Wm. Northrop, Jr., [l. a]

D. H. Matthews, [l. a]

John Northrop, [l. a]

(A. A. Stoddard.)

(Mr. Stoddard’s name was not in the body of the agreement, but was at the end. It had been scratched over with a knife, and could be easily read and was very distinct.)

“A. M. Rinehart, [l. s."

Jackson & Hollenbeck, [l. si

Wm. H. White, [l. si

A. W. Smith, [l. s.'

Mark Jones, [l. s."

J. H. Wood, [l. s.

J. W. Broadhead, [l. s."

This áction was commenced, in June, 1882, to recover the balance of a bill of goods. Issue was joined, the action was referred and the referee found for the plaintiffs. It appeared that the above agreement was made for the purpose of establishing and carrying on a store in the village of Busti, Chautauqua county. After considerable litigation the court of appeals decided, 116 N. Y., 61; 26 N. Y. State Rep., 612, that the parties to the agreement were partners, reversing the same case in the 40th of Hun, 166.

The referee’s third finding of fact is as follows:

“ That at the time said written agreement was so drawn and ■prepared, a blank space was left in the body thereof for the purpose of writing therein the names of the parties thereto of the second part. That at the time the said agreement was executed it was understood and assented to by the respective parties thereto, that the said instrument would not be used as a contract until it was signed by at least twenty persons other than Evolin B. Robertson.
“ That thereupon and as hereinbefore stated the twenty persons named in said instrument as parties of the second part thereto, did execute the same under their hands and seals and as hereinbefore found and stated, and thereupon one Thomas Jackson became the custodian thereof on behalf of the said parties thereto, and subsequently the names of the said parties thereto of the second part were written in the body of said instrument in the blank space so left therein for that purpose by the said Alonzo 0. Pickard.”

The seventh finding is:

“ That the names of the persons in the body of the said agreement in writing are the same persons who executed the same and are the same persons named as defendants in - the summons and complaint in this action, except that the signature, ' Jackson & Hollenbeck,’ represents the defendant Jane 0. Jackson and one Abbie E. Hollenbeck. That the correct names of the parties to said instrument in writing hereinbefore fully set out are Evolin B. Robertson, Monroe Mattison, William B. Martin, Charles H. Johnson, Oren Stoddard, James Moon, William Holt, Alonzo 0. Pickard, Russell D. Bush, Hiram D. Stoddard, William Northrop, Jr., Davis H. Matthews, John Northrop, Amos M. Rinehart, Jane 0. Jackson, Abbie E. Hollenbeck, William H. White, Aaron W. Smith, Mark Jones, James H. Wood, James W. Broadhead. That at the time of the execution of said agreement in writing all of said defendants, except James W. Broadhead, lived at Busti, aforesaid; he then resided in the adjacent town of Ellicott.”

Those findings are supported by the evidence, and the defendants took no exception to the seventh finding. The referee found the following conclusions of law:

“ As conclusions of law I find and decide that the said defendants were co-partners in said business so carried on by them under the said name and style of ‘Busti Union Store.’
“ That the name Addison E. Hollenbeck be changed to Abbie E. Hollenbeck. That the said defendants as such co-partners are indebted to the plaintiffs for and on account of said goods, wares and merchandise so sold and delivered to them by the said plaintiffs in the said sum of one thousand, two hundred and eighty-one dollars and fifty-nine cents with interest thereon from January 6th, 1882. The total indebtedness being at this date the sum of one thousand, nine hundred and fifty-foiir dollars and fifteen cents.
“ Judgment is ordered and directed in favor of the plaintiff and against said defendants for said last named sum together 'with the costs of this action to be taxed.”

The only exception to the conclusions of law was as follows:

“The said defendants except to all of the findings of law in said referee’s report.”

Ansel A. Stoddard signed his name to the agreement but a day or two after requested its erasure, and was afterwards informed that it was erased. Stoddard never took part in carrying on the business, and the plaintiffs had no knowledge that he was a member of the firm or had any interest in it. His name was never inserted in the body of the agreement.

It was conceded on the trial that the defendant, Addison E. Hollenbeck was not the Hollenbeck named in the agreement in the signature “ Jackson & Hollenbeck.” That in fact those signatures were made by Jane C. Jackson and Abbie E. Hollenbeck. Addison E. Hollenbeck was never a party to the contract It was also agreed that the summons in this action was never served upon either Addison E. Hollenbeck or Abbie E. Hollenbeck.

The defendants among other things answered that Thomas Jackson, Abbie E. Hollenbeck and Ansel A. Stoddard should be made parties defendant, and claimed non-joinder.

The referee’s ninth finding is as follows:

“ That neither the summons or complaint in this action was served upon any person by the name of Hollenbeck. That Abbie E. Hollenbeck is the correct name of the Hollenbeck mentioned in the agreement herein set out and is made a party thereto.”

In his conclusions of law above quoted, he finds that the name Addison E. Hollenbeck be changed to Abbie E. Hollenbeck. This change was made and- judgment entered in form against her, as well as the other defendants.

The learned counsel for the appellants in his brief reverses the names of Abbie E. Hallenbeclc and Addison E. Hollenbeck. He, therefore, states that Abbie E. Hollenbeck appeared and answered, but Abbie E. did not, so far as the case discloses.

Two questions are presented by this appeal. One as to whether Ansel A Stoddard should have been made a party to the action. The case shows that after he signed the instrument, but before its body was filled with names, he expressed a wish not to become a party, which was so far acquiesced in that the signature was partially scratched out, and his name was never inserted in the body. He never in any of the dealings was treated as a party to-the contract, and was not made defendant. Hpon the facts appearing, no reason is seen why he should have been made a defendant.

The other question is the omission to make Abbie E.Hollenbeclc a party defendant Addison E. Hollenbeck was never a party to the contract. Abbie E. Hollenbeck was, the name used being Jackson & Hollenbeck, but when the action was commenced the pleader mistakenly assumed that the signer was Addison E. Hollenbeck, who was made defendant These facts appeared on the trial, and the referee allowed a correction of the name.

Sections 723 and 1018' of the Code of Civil Procedure confer power upon the court or referee to amend summons or complaint in respect to parties.

In the ease at bar, Abbie E. Hollenbeck was a party to the contract The given name of a person who was not such was used by the plaintiffs. Upon the discovery of the mistake, the referee allowed an amendment. Addison É. Hollenbeck had no concern or interest. He had a right to appear when sued; but in this case he was not served with process, but for some reason (not disclosed) his attorney interposed an answer, in which he pleads, among other things, the non-joinder of Abbie.

Section 1932 of the Code of Civil Procedure, in the case of joint liability, authorizes judgment in form to be entered against all the defendants, although part of them are not served with process. But under the same section an execution could not be collected against the individual property of Abbie, and could only be collected from the joint property.

In the present case, the referee had power to correct the name. It was so corrected. Judgment in form was entered against her, as well as the other defendants. If, for any reason, the judgment against her is improper, she would be the party to seek its correction. The plea of non-joinder is answered by the fact that she is included in the judgment with the rest.

The seventh finding shows that Abbie E. was a party to the instrument. Ho exception was taken to that finding by the defendants. The conclusion of law that the name Addison E. Hollenbeck be changed to Abbie E. Hollenbeck was not excepted to. 'The defendant’s exception to all the findings was not sufficiently specific to raise this point or.any other. Schoonmaker v. Bonnie et al., 119 N. Y., 565; 30 N. Y. State Rep., 113 ; Murray v. Usher, 117 N. Y., 542; 27 N. Y. State Rep., 928; Smedis v. Brooklyn & R. Beach R. R. Co., 88 N. Y., 13; Bosley v. N. M. Co. et al., 123 id., 550; 34 N. Y. State Rep., 277.

It follows that the judgment must be affirmed.

Dwight, P. J., and Macomber, J., concur.  