
    In the Matter of the Probate of the Will of Lyman Soule, Deceased.
    
      Surrogate’s Court of Cayuga County,
    
    
      Filed November, 1886.)
    
    1. Surrogate’s court—Amendment oe proceedings in—Code Civ. Pro., §§ 721-730, applicable to—Code Civ. Pro., § 2538.
    By Code Civil Procedure, § 2538, the rules relating to amendments in other courts of Record (Code Civ. Pro., §§ 721-730) are made applicable to proceedings in surrogate’scourts.
    2. Amendments—Power oe court to make—Code Civ. Pro., § 723.
    It is provided by Code Civil Procedure, § 723, that the court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice and . n such terms as it deems just, amend any process, pleading or other proceeding by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party or mistake in any other respect.
    8. Same—Extent oe power.
    The test as to whether an amendment of a process is proper under the Code, is whether the character of the action or ¡proceeding will be thereby Changed. If not, and if the proper parties in interest have had due notice, any amendment maybe made in the names or description of parties which will conform to the intention as shown in the pleadings.
    4, Surrogate’s court—Amendment of citation—When allowed.
    Where a petition was made for the revocation of the probate of a will, and a citation was issued thereon and served on the persons designated in the will as executors, but omitting their official title as such: Reid, that the court thereby gained jurisdiction of the parties, and that the citation might be amended by the insertion of the oficial title of the executors.
    Petition was filed March 25, 1887, asking revocation of the probate of the will of said decedent, admitted to probate in this court June 28, 1886.
    The grounds upon which revocation is demanded are fully specified in the petition. The names of the executors of said will, who have all duly qualified, and of the legatees named in said will, are all set forth. The petitioner alleges that she is an heir at law and next of kin as well as legatee, and as such interested in the estate of the decedent, and she prays for a decree revoking said probate, and for such other relief as may be just, and ‘ ‘ that the said executors, and all the devisees and legatees named in said will and codicils, and other persons who are parties to the proceedings in which said probate was granted, be cited to show cause why said probate should not be revoked,” etc. Upon this petition, on the same day it was filed, a citation was issued by the surrogate directed to all the parties named in said petition, the names of the executors being first given, and each one being repeated among the other names, but they are not anywhere in the citations designated as executors. Upon the return day named in the citation, June 7, 1887, the petitioner appeared. Certain of the parties also appeared. Special guardians were appointed for the infant parties, and the proceeding was duly adjourned until the 6th day of July, 1887, when the parties named as executors appeared by counsel for the sole purpose of moving to dismiss the petition. There has been no appearance by the executors as such, and no general appearance by the individuals who are executors.
    
      H. V. Howland, for motion; W. E. Hughitt, for legatees; M. A. Knapp, for legatees; M. M. Waters and Messrs. Woodin & Warren, for the petitioner, opposed; W. R. Hopkins and H. E. Hills, special guardians.
   Teller, S.

—The question presented by the motion to dismiss this proceeding is, whether this court has any jurisdiction of the necessary persons or subject matter. It is contended by the moving party that the executors, not being named as such in the citation, there has been an utter failure to comply with the statute, by which the authority of this court is conferred. There is no contention that the petition does not set forth the necessary facts, or that the prayer thereof does not conform to the requirements of the statute, and had the citation followed the demands of the petition, the motion would have had no foundation. The petition was filed within the time prescribed by law. By section 2517 of the Code of Civil Procedure, it is enacted that “the presentation of a petition is deemed the commencement of a special proceeding, within the meaning of any provision of this act, which hmits the time for the commencement thereof. But, in order to entitle the petitioner to the benefit of this section, a citation issued upon the presentation of the petition must, within sixty days thereafter, be served, as prescribed in section 2520,” etc.

The time for the service of a citation having elapsed, this proceeding must stand, if at all, upon the service already made. No new or supplemental citation can be of any avail, and it becomes necessary to determine whether service upon the executors of a citation directed to them as individuals without their official title, confers jurisdiction upon the court to proceed as against them, and to grant an amendment of the citation to conform it to the petition. If the court has this power, I think it ought to be exercised, as the objection raised is purely technical, and does not reach the merits of the proceeding.

The citation was served within the time required to give the petitioner the benefit of section 2517, and upon the proper persons. The rules relating to the amendments in other courts of record (Code, §§ 721, 730) are made applicable to the proceedings in surrogate’s courts, Section 2538.

Section 723 of the Code provides, “The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice and on such terms as it deems just, amend any process, pleading or other proceeding by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect,” etc. No amendment can be allowed which changes the character of the proceeding. The petition which bears the nature of a pleading in an action, and the object of which is to appraise the court and parties of the character of the proceeding, the relief sought, and the grounds therefor, has set forth the executors in their official capacity, and is in no respect different from what would be required to authorize a citation addressed to the executors as such.

Any party, referring to the petition, would be informed as to the facts upon which revocation of probate is sought and as to whom the parties thereto were intended to be. The names of all the executors appeared twice in the citation. The proper parties were served; they are presumed to know of the filing of a petition. They had access to it, and must be deemed to have seen and known its contents,, It is made the duty of courts to disregard any error or defect in proceedings which shall not affect the substantial rights of parties. The omission complained of would seem to have been a clerical error on the part of the person writing out the citation. In these circumstances, is it not within the power of this court to amend the citation to make it correspond with the petition?

In the case of the Bank of Havana v. Magee et al. (20 N. Y., 355) one Charles Cook, who had been carrying on a banking business under the name of “The Bank of Havana,” brought an action in that name, which ought to have been in his individual name. The court of appeals held the proceedings were all amendable under section 173 of the Code, which was similar to section 723 of the Code of Civil Procedure. The court say it is apparent from the proceedings that the parties understood each other perfectly, and that it was the duty of the court below, when the objection was taken, to order the pleadings to be amended.

In the case of Risley, as Executor, v. Wightman (13 Hun, 163) the defendant denied that the plaintiff was ever appointed executor. The evidence showed that the plaintiff had been appointed administrator with the will annexed. The court held that the complaint was amendable, that it did not change the rights of the parties and constituted a mere technical variance.

In the case of Phillips v. Melville (10 Hun, 211), it was sought, after taking evidence to amend the summons and complaint by changing the action by an administratrix to one in her own favor individually. It was held that the change could not be made for the reason that it made a new action, distinct and separate from the manner in which it had been commenced.

In Tasker et al. v. Wallace (6 Daly, 364) an action against a stockholder upon a judgment recovered in a suit brought against “the West Side Railroad Company,” under which name a judgment was recovered, upon motion afterwards made, the court allowed the summons, complaint, judgment-roll and execution to be amended to make the title of the defendant “the West Side and Yonkers Railroad Company.” It was held that as the summons had been served upon the proper officers of the company, and the amendment did not create another or different action, it was properly allowed.

In the case of Tighe v. Pope (16 Hun, 180), plaintiff moved for leave to amend the summons and complaint by striking out the words, “as administratrix,” and to proceed against the defendant personally. It was held by the general term of the supreme court, that the motion was proper and should have been granted, as it would have worked no change in the cause of action. The same person would be defendant and no increased burden would be imposed upon her.

In Haddow v. Haddow (3 N. Y. S. C. [T. & C.], 777), affirmed by court of appeals, an action by a person in her own right was cnanged to one in her favor as administratrix.

In the New York State Monitor Milk Pan Company (Limited) v. Remington Agricultural Works (25 Hun, 475), it was held by the general term, that an amendment was permissible striking out the defendant’s name and substituting therefor the names of the three partners who had purchased the defendant’s business and were carrying it on under the defendant’s name. This decision was reversed by the court of appeals (89 N. Y., 22), but upon the ground that the effect of the amendment was to change the action to one against other and different parties. The company named represented stockholders and different interests from those represented by the parties sought to be made defendants. The court says: “While full authority is conferred for adding or striking out the name of a person or a party, or correcting a mistake in such name, it does not sanction an entire change of name of the defendant by the substitution of another or entirely different defendant.

In the case of Van Cott v. Prentice et al. (104 N. Y. 57) an action against defendants as executors, the complaint alleged that the defendants held certain property in their representative capacity, which defendants admitted. The complaint conceded that the defendants asserted no other title or claim. After trial a motion was made to amend the summons and complaint and ordering the judgment awarded to be entered against the defendants individually, and de bonis propriis. It was held the amendment substituted a new and different cause of action, which as individuals the defendants had had no opportunity to defend.

In the case of Fountain v. Carter (2 Demarest, 313), a proceeding for the revocation of probate of a will, a petition had been filed within a year, the citation was served within sixty days upon the executor; but no service, whatever, had been made within that time upon any other person entitled to be made a party. It was held by the learned surrogate, and very properly that the proceeding should be dismissed. The time for further service had elapsed, and the petitioner had forfeited the benefit of section 2517.

In Stilwell, executrix, etc., v. Carpenter (62 N. Y., 639), defendant moved to dismiss the compalint on the ground, that the proof showed the plaintiff has no interest in his representative capacity; held that, as a cause of action was established in favor of the plaintiff, personally, and the complaint showed that she brought the action, both as devisee and executrix, the motion was properly denied.

The rule laid down in the early cases was that process was not amendable where it appeared void upon its face. It was held void for what it contained, but not for the omission of some essential requirement. This the court would allow, supplied, as for instance, the clerk’s signature, the seal of the court, or the name of the defendant, after the writ was executed and the defendant was in custody under it. 1 Tidd’s Pr., 161.

The test as to whether an amendment of a process is proper under the Code appears to be whether the character of the action, or proceeding will thereby be changed, and if not, and the proper parties in interest have had due notice, any amendment may be made in the names or description of parties which will conform to the intention as shown in the pleadings. I cannot see that there is any prohibition against the continuance of this proceeding. I think the court has jurisdiction of the parties and subject-matter, and an amendment of the citation should be made in the interests of justice showing the official character of the executors.

The other ground of the motion ought not to be passed upon without hearing the proofs and this motion will therefore be denied.  