Riley v. Stern 23 Abb. N. Cas. 435

RILEY v. STERN.

N. Y. City Court, Special Term and Chambers.

<Parties; power of court to strike out and add.] The court has power, where there are several defendants, to strike out the name of one or more who have been erroneously included, and substitute the name of another person who is properly a party.

Motion by plaintiff to strike out the name of a defendant and insert the name of another person in his place.

This action was brought by the plaintiffs against the members of the firm of S. & M. Stern, for goods sold. It •appears, by the affidavit on which this motion was made, that when the summons and complaint were drawn, the names of the persons composing the co-partnership of S. & M. Stern, were taken from Trow’s Co-partnership Directory for 1889, in- which it was stated that the names of the co-partners were Solomon, Moses, and Henry Stern. The •answers of Solomon and Moses Stern to the complaint set up that Henry Stern was at no time a co-partner in the said firm of S. & M. Stern, but that the said firm was composed •of the defendants and one Bernard Pasternak, and that the latter should have been made a party defendant. Whereupon this motion was made by plaintiffs to have the name of Henry Stern in the action stricken out and the name of •Pasternak inserted in place thereof.

S. F. Kneeland, plaintiffs’ attorney for the motion.

X. Marx and A. H. Barick, opposed.