Di Pietro v. McAllister Bros.

47 Misc. 2d 714, 263 N.Y.S.2d 32, 1965 N.Y. Misc. LEXIS 1682

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 14, 1965
• Status: Published

Opinion

Per Curiam.

The order should be unanimously reversed, with $10 costs to defendant, and motion to correct pleadings by substituting McAllister Lighterage Line, Inc., as defendant in place of McAllister Bros., Inc., mine pro tunc, denied. The court was without power to make such order. (Abrams v. General Financial Corp., 274 App. Div. 756.) Plaintiff’s original designation of McAllister Bros., Inc., as defendant may not be regarded as a mere misnomer. The substitution of one defendant for another by order, without provision for service of process on the new defendant, is not sanctioned by CPLR 2001, which continues section 105 of the Civil Practice Act essentially unchanged.

Concur — Di Giovanna, Gulotta and Brenner, JJ.

Order reversed, etc.