
    (22 Misc. Rep. 248.)
    HULBERT et al. v. HOHMAN.
    (Supreme Court, Special Term, Onondaga County.
    January, 1898.)
    Amendment to Summons and Complaint—Power of Court to Grant.
    When, through inadvertence, the summons and complaint in an action are-entitled in the name of the plaintiff company, instead of the receiver thereof, it is within the power of the court to grant an amendment thereto making the receiver plaintiff therein, instead of the company.
    Action by Hulbert Bros. & Co. against John T. Hohman. Motion to amend summons and complaint.
    Granted.
    Motion to amend summons and complaint herein by making Frederick P. Forster, as receiver of Hulbert Bros. & Co., instead of said' Hulbert Bros. & Co., plaintiff.
    Irving G. Hubbs, for the motion.
    J. R. Shea, opposed.
   HISCOCK, J.

It seems that at the time this action was commenced the above-named Forster had been appointed receiver of Hulbert Bros. & Co., and therefore the cause of action was vested in him. Through inadvertence, the summons and complaint were entitled in the name of the company, as plaintiff, and this application is now made to change the name of the plaintiff accordingly. I think it is within the power of the court to grant the application, and that the amendment should be allowed. Code Civ. Proc. § 723; Heckemann v. Young, 18 Abb. N. C. 196; Kaplan v. Biscuit Co., 5 App. Div. 60, 38 N. Y. Supp. 1049. As was suggested in Dean v. Gilbert, 92 Hun, 427, 36 N. Y. Supp. 1004, the amendment may be regarded almost as a correction of the name of the plaintiff, rather than the substitution of an entirely distinct and different party from that named and referred to in the allegations of the complaint. The suggestion made in opposition to the motion, that it does not sufficiently appear that the receiver is a party to this application, or represented therein by plaintiff’s counsel, is answered by the fact, among others, that part of the moving papers are the proposed amended summons and complaint, duly verified by Mr. Hubbs, as attorney for the receiver, and in which he specifically states that he is such attorney. The motion is therefore granted, with $10 costs, to abide event.

Motion granted, with $10 costs, to abide event.  