
    Andrew P. Morison, Appellant, v. Ella L. Laing, as Executrix, etc., of Edgar L. Laing, Deceased, Respondent.
    First Department,
    June 4, 1909.
    Judgment — misnomer of defendant — when identity not question for jury.
    Where in an action upon a judgment it appears that the defendant although named Edgar L. Laing, while personally served and appearing without objection, was described in the judgment as Edward L. Laing, and that 1m actually signed the notes on which the original judgment was recovered and appeared in supplementary proceedings under the name of Edward L. Laing, without objec-. tion, it is error to submit the question of the defendant’s identity to the jury.
    Under the circumstances, there being no defense other than the misnomer, the court should have directed judgment for the plaintiff.
    Appeal by the plaintiff, Andrew P. Morison, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th day of December, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 8th day of May, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Edgar M. Doughty, for the appellant.
    
      Charles Strauss, of counsel [Eugene D. Boyer with him on the brief], for the respondent.
   Clarke, J.:

The plaintiff is the assignee of two judgments recovered in the City Court of the city of New York by Nicholas Apel and Nicholas P. Shue, and alleges in the cause of action upon each judgment as follows: That the said judgment was recovered and the action in which it was granted Avas prosecuted' against the said Edgar L. Laing under the name of Edward L. Laing, and that the said defendant in said judgment described as Edward L. Laing was in reality Edgar L. Laing, hereinafter mentioned and described, and that his true name was Edgar L. Laing; but that he was otherwise known as Edward L. Laing and E. L. Laing, but that the judgment was in reality against the said Edgar L. Laing.

It appeal’s that Edgar L. Laing Avas a member of a firm known asE. L- Laing & Co:; that he drafted and signed with his OAvn hand the notes which were the subjects of .the actions in the City Court and that said notes were signed E. L. Laing & Co.; that he Avas very commonly known and called by his friends and acquaintances “Ed.” and by .some was lmmvn as Edward ; that in said actions he Avas sued as EdAvárd, but that the summons and complaint were personally served upon him ; that h.e made no objection to the •receipt of said papers or a motion to set aside the service or for the correction of his name; that after judgment had been recovered that an order for his examination in supplementary proceedings under the name of Edward L.. Laing was obtained and was personally served upon him; that he appeared in open court before the justice wlio had signed said order and _ was duly sworn and was examined at considerable length; that several adjournments Avere taken, his Avritten consent being placed upon the papers, and subsequently further examined; that the signature to the testimony given by him Avas “Edgar L. Laing” and the consents to the adjournments “ E. L. Laing.”

The defense interposed Avas that the service of the summons in said action was not made upon the decedent, Edgar L. Laing, but upon one Edward L. Laing, upon whom plaintiff’s assignors had obtained judgment; that the plaintiff’s assignors never obtained-any judgment against the defendant' Edgar L. Laing in his lifetime and that as matter of fact neither the said plaintiff nor his said assignors have any valid claims against the estate of the decedent, Edgar L. Laing.

The proof completely sustains the allegations that defendant’s decedent was the person who made the notes upon which the City Court judgments were obtained, was the person intended to be sued, was the person who was served with the summons, and was the person who appeared and was examined in the supplementary proceedings. The learned trial court left to the jury the one question : “ At the time .of the commencement of the action in the City Court was Edgar L. Laing otherwise known as Edward L. Laing ? ” to which question the jury answered, no. Whereupon the court directed the jury to find a verdict for the defendant, to -which direction the plaintiff excepted.

In Stuyvesant v. Weil (167 N. Y. 421), where one Mary J. Stockton had been served in an action for the foreclosure of a mortgage with the summons and complaint, in which she was called Emma J. Stockton, the Court of Appeals said: “ But we cannot concur with a view that insists upon it that any error appearing in a summons in the name of a defendant prevents the, court from acquiring jurisdiction of such defendant, notwithstanding he was fully apprised when service of the summons was made upon him that he was the party intended to be named therein and affected thereby.”

In Holman v. Goslin (63 App. Div. 204), where one Alfred R. G-oslin had been served with a copy of a summons in which his' name was stated as Alfred R.-Joslin,tliis court said : “ If the person is fairly apprised that the action is brought against him as the party intended to be affected, he is immediately in position to avail himself of every legal remedy which he might have invoked had he been in all respects correctly named. Under such circumstances he is called upon to act, and the court acquires jurisdiction to render such a judgment as the plaintiff by his pleading shows himself entitled to. In the present case there is no doubt but that the defendant knew that he was the person intended to be proceeded against. The court thereby acquired jurisdiction and the judgment was properly rendered,” and we reversed an order setting aside a judgment entered upon default.

Upon the facts appearing upon this record we do not think that any question was presented which required submission to the jury, but that the plaintiff was entitled to a direction of a verdict in his favor. In this case there is'no doubt but that the defendant knew that he was the person intended to he proceeded against and, as the court said in Holman v. Goslin (supra), “ the court thereby acquired jurisdiction and the judgment was properly rendered.”

It follows, therefore, that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  