
    Universal Match Corp. v. Chellino
    
      Pearson M. Judd, for plaintiff.
    
      Joseph P. Brennan, for defendant.
    April 14, 1941.
   Leach, P. J.,

By the statement of claim it appears that Hotel Chellino ordered a considerable quantity of matches from plaintiff, signing the firm name Hotel Chellino by Frank J. Chellino. When payment was not made, the claim was sued before an aider-man with defendant named as Hotel Chellino, Frank Chellino, proprietor. Appeal was taken from the judgment in this case. By defendant’s rule a bond for security of costs was secured, and upon the filing of an amended statement changing the name of defendant from Samuel Chellino and Frank Chellino, trading as Hotel Chellino, to Salvatore Chellino, also known as Samuel Chellino, defendant brought this rule to strike off the amended statement of claim.

The grounds were that the original service was upon Frank Chellino and that Salvatore Chellino never had been served and could not be made a party by amendment.

There might be considerable force to this motion were it not that the transaction was originally signed in the fictitious name of Hotel Chellino. The amendment statute of March 21, 1806, 4 Sm. L. 326, sec. 6, and its supplementary Acts of April 16, 1846, P. L. 353, and May 4,1852, P. L. 574, as set forth in 12 PS §531-533, inclusive, provide that the court shall have power to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, wherever it shall appear to it that a mistake or omission has been made in the name or names of any such party.

Defendant in this ease is whoever is trading under the fictitious name of Hotel Chellino, whether his name be Salvatore or Frank or both, and may be added by amendment. If it be true that Salvatore Chellino is not a party to the business conducted under the name of Hotel Chel-lino, the fact must appear by affidavit of defense or other matter extraneous to the record and cannot be shown by mere motion to strike off.

April 14,1941, the rule to strike off plaintiff’s amended statement is discharged.  