Edward B. Vanderveer, as Agent of the Royal Exchange Assurance Company of London, Respondent, v. Philip Cohen, Appellant

Edward B. Vanderveer, as Agent of the Royal Exchange Assurance Company of London, Respondent, v. Philip Cohen, Appellant. Second Department, June 29, 1910. Practice — amending summons—mistake of plaintiff in suing as agent — correction of complaint — necessity for serving new summons. A new party defendant can be added to an action only by an amendment of the summons. Plaintiff, suing as agent, brought an action in the Municipal Court of Hew York city. .-A demurrer to the complaint .on the. ground that plaintiff did not have legal capacity to sue was sustained. He served an amended complaint in which his principal itself appeared as plaintiff, but neglected to serve a summons therewith. Held, that the second complaint should be dismissed, as it was substantially a new action; That the mistake of a plaintiff in suing in a representative capacity could not be corrected by omitting the descriptive, words. Appeal by tlie defendant, Philip Cohen, from a judgment of the •Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 3dth day of January, 1908. Henry D. Levy, for the appellant. No appearance or brief for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The appeal is from a judgment of the Municipal Court. Action upon the claim was brought originally by Vanderveer as agent, of the Boyal Exchange Assurance Company of London against tiffs defendant, who demurred that the plaintiff had not legal capacity to sue. The demurrer was sustained, and the plaintiff was permitted to amend his complaint upon payment of costs. The amendment made was to strike out the name of Vanderveer as agent of this plaintiff, so that the company itself appeared as plaintiff. And a complaint, changed mutatis mutandis, was served. A motion was thereupon made to dismiss the complaint because no summons was served with it, as this was substantially a new action. We think that the defendant’s contention is sound. We are inclined to the view that a summons in the Municipal Court may be amended. (Mun. Ct. Act, § 20; Code Civ. Proc. § 728.) But the situation is that there is but a summons entitled in one action and but a complaint without a summons in another action, which has gone to the judgment under review. The law in this case is that the Boyal Exchange Assurance Company, the present plaintiff, is not the same person as Edward B. Vanderveer as agent of the Boyal Exchange Assurance Company of London, for the demurrer that Vanderveer had not legal capacity to sue was sustained. A new party can be added only by amendment of the summons. (Walkenshaw v. Perzel, 32 How. Pr. 310; Follower v. Laughlin, 12 Abb. Pr. 105 ; Baylies Code Pl. & Pr. [2d ed.] 486.) While it is true that a mistake in suing a defendant in a representative capacity may be corrected by omitting the words descriptive thereof (Boyd v. U. S. Mortgage & Trust Co., 187 N. Y. 262), the rule seems different in the case of a plaintiff who when he “ brings an action * * * has the knowledge in himself as to the capacity in which he should sue.” (Bowen v. Phoenix Bridge Co., 134 App. Div. 22.) Woodwaed, Bueb, Thomas and Bioh, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, with costs to the appellant.