
    Eugene Southack, Respondent, v. Olin F. Gleason et al. as Trustees, etc., Appellants.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Pleading — Amendments by leave of court — Before trial—Change of nature of defendant’s liability.
    Process — Amendments — To state capacity in which defendant is sued.
    The City Court of the city of New York has power by amendment to turn an action against defendants as trustees to one against them as individuals, but both the summons and complaint should be amended; an amendment to the complaint alone is ineffectual.
    Appeal by defendants from an order of the City Court of the city of Eew York granting leave to plaintiff to serve an amended complaint.
    Robertson, Harmon & Davies, for appellants.
    Cheevey & Rogers (Hubert E. Rogers of counsel), for respondent.
   Per Curiam.

The court had power to so amend the proceedings as to turn the action into one against the defendants individually. Boyd v. United States Mortgage & Trust Co., 84 App. Div. 466. The summons, however, should have been amended, as well as the complaint; and an amendment of the latter, alone, is ineffectual and cannot be sustained.

Order reversed, with ten dollars costs and disbursements, and motion denied, with leave to plaintiff to make such motion in the court below as he may be advised.

Present: Scott, Giegeeich and Gbeenbaum, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with leave to plaintiff to make such motion in court below as he may be advised.  