
    Jacob B. Ziegler, Respondent, v. The George Schleicher Company, Appellant.
    (Supreme Court, Appellate Term,
    November, 1907.)
    Municipal Courts: Procedure — Process —Amendment: Review — Judgments and orders reviewable — Judgment against defendant not served with process. -
    Where, upon the trial of an action in the Municipal Court of the city of New York, plaintiff is confronted with the fact that he had proceeded against the wrong party as % defendant, and the court permitted an amendment of the process by substituting for the defendant served a new defendant never served, a judgment in plaintiff’s favor is coram non judice, .and will be reversed upon an appeal therefrom by the defendant against whom judgment was rendered.
    v The original defendant is not entitled to appeal and such an appeal will be dismissed, with costs.
    Appeal by George Schleicher and George Schleicher Company from a judgment of the Municipal Court of the city of New York, first district, borough of Manhattan, in favor of plaintiff and against George Schleicher Company for $65.72.
    Norman W. Kerngood (Alfred Pagelow, of counsel), for • appellant.
    Harry Edwards, for respondent.
   Per Curiam.

Plaintiff brought this action against one George Schleicher to recover the sum of fifty dollars alleged' to have been paid by fraud and mistake. The parties plaintiff and defendant continued the same until the issue was tried. At the very moment plaintiff sued he had in his possession a written agreement, out of which the alleged fraud and mistake occurred, signed on the one part by his wife and on the other part by George Schleicher Co.” This was some notice to him that others were concerned in the transaction besides Schleicher individually; but, until the trial, so far as appears, no attention was given to the subject. In the midst of the trial plaintiff was confronted with the fact that he had proceeded against the wrong party defendant; and, to remedy the mischief, the court permitted an amendment of the process by substituting for the defendant served a new defendant, styled “ George Schleicher Company,” never served. It does not appear whether this company is a corporation or an association of seven or more persons, but we are informed that George Schleicher is the president of the company. Because Schleicher was served, and because he admitted he was the president of the company,- the court ruled, we will amend the summons to read ‘ George Schleicher Company/ it appearing that the defendant company was served with the summons.” The defendant excepted and proceeded with his defense and, at the close of the trial, moved for judgment. The motion was denied and an exception noted. Judgment was rendered in favor of the plaintiff against George Schleicher Company for sixty-five dollars and sixty-two cents. George Schleicher, the original defendant, disappeared from the case. Both he and the George Schleicher Company, the substituted defendant, appeal. A person not a party to a proceeding cannot appeal. People ex rel. Turner v. Sanborn, 46 App. Div. 630. Section 1296, Code Civil Procedure, enacts when a person not a party may appeal, but that section makes no provision for a case like the one át bar.

The appeal as to George Schleicher must be dismissed, with costs to respondent. The judgment against the substituted defendant cannot be sustained for it was never served with process, and as to it is coram non judice. If execution was allowed to issue and the property of the George Schleicher Co. levied upon to satisfy the judgment, it is self-evident that such a levy and talcing would offend thp fundamental law of the State which provides that no person shall be deprived of his property without due process of law.

The judgment as to the George Schleicher Company must be reversed and the complaint dismissed, with costs to appellant.

Present; Gildersleeve, Leventritt and Erlanger, JJ.

Judgment as to Schleicher Co. reversed and complaint dismissed, with costs to appellant.  