Anderson v. Horn

City of New York Municipal Court

Anderson v. Horn

10 N.Y.S. 8, 1889 N.Y. Misc. LEXIS 2450

DecidedJune 10, 1889

StatusPublished

This text of 10 N.Y.S. 8 (Anderson v. Horn) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Anderson v. Horn, 10 N.Y.S. 8, 1889 N.Y. Misc. LEXIS 2450 (N.Y. Super. Ct. 1889).

Pincite

Opinion

McAdam, C. J.

A defendant ought to be sued in the surname of his ancestors, and the Christian name given to him in baptism. Bank v. Magee, 20 N. Y. 355, 363. If the defendant is known by two names, he may be sued by either, (Eagleston v. Son, 5 Rob., N. Y., 640,) or that by which he is generally known, though not his real name, (Cooper v. Burr, 45 Barb. 9;) or, if the real name be unknown, he may be sued by a fictitious name, adding a description identifying the person intended, (Code Civil Proc. § 451,) such as “the man in command of the ship Hornet,” (Pindar v. Black, 4 How. Pr. [9]*995.) This liberality in practice fails, however, to prevent the ever-recurring confusion paused by misnaming the defendant,—an error which becomes more difficult to repair as the proceeding advances. The plaintiff charges that the defendant engaged board under the name of “John Howard,” and that his correct name is “John Horn,” and by this name the defendant was sued. He undertook to defend in the name of “John A. Horan,” which he claims to be his correct cognomen. His plea was returned. It is not a case of misspelling or of idem sonans, but of misnomer or nothing. The court must first ascertain the defendant’s true name or his alias dictas before it can undertake to decide whether he has been correctly proceeded against or not. When the facts are settled, there will be no trouble in correctly- applying the law. The parties must appear in court for oral examination on June 11th, at 2 p. m. On the conclusion of the examination the application will be decided.

Free access — add to your briefcase to read the full text and ask questions with AI

McAdam, C. J.

A defendant ought to be sued in the surname of his ancestors, and the Christian name given to him in baptism. Bank v. Magee, 20 N. Y. 355, 363. If the defendant is known by two names, he may be sued by either, (Eagleston v. Son, 5 Rob., N. Y., 640,) or that by which he is generally known, though not his real name, (Cooper v. Burr, 45 Barb. 9;) or, if the real name be unknown, he may be sued by a fictitious name, adding a description identifying the person intended, (Code Civil Proc. § 451,) such as “the man in command of the ship Hornet,” (Pindar v. Black, 4 How. Pr. [9]*995.) This liberality in practice fails, however, to prevent the ever-recurring confusion paused by misnaming the defendant,—an error which becomes more difficult to repair as the proceeding advances. The plaintiff charges that the defendant engaged board under the name of “John Howard,” and that his correct name is “John Horn,” and by this name the defendant was sued. He undertook to defend in the name of “John A. Horan,” which he claims to be his correct cognomen. His plea was returned. It is not a case of misspelling or of idem sonans, but of misnomer or nothing. The court must first ascertain the defendant’s true name or his alias dictas before it can undertake to decide whether he has been correctly proceeded against or not. When the facts are settled, there will be no trouble in correctly- applying the law. The parties must appear in court for oral examination on June 11th, at 2 p. m. On the conclusion of the examination the application will be decided.

Cite This Page — Counsel Stack

Bluebook (online)

10 N.Y.S. 8, 1889 N.Y. Misc. LEXIS 2450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-horn-nynyccityct-1889.

Opinion

Related

Cite This Page — Counsel Stack