Di Stefano v. Di Stefano

Appellate Terms of the Supreme Court of New York

Di Stefano v. Di Stefano

5 Misc. 2d 683, 158 N.Y.S.2d 821, 1956 N.Y. Misc. LEXIS 1358

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 29, 1956

StatusPublished

This text of 5 Misc. 2d 683 (Di Stefano v. Di Stefano) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Di Stefano v. Di Stefano, 5 Misc. 2d 683, 158 N.Y.S.2d 821, 1956 N.Y. Misc. LEXIS 1358 (N.Y. Ct. App. 1956).

Pincite

Opinion

Per Curiam.

The proposed amendment of the title in the summons, complaint, and other pleadings was merely to change the designation of the defendant Di Stefano from his representative capacity as executor to his individual capacity. Such an amendment does not bring in a new or different party and is, therefore, permissible notwithstanding that at the time of the amendment the period of limitation has already run. (Boyd v. United States Mtge. & Trust Co., 187 N. Y. 262; cf. Van der Stegen v. Neuss, Hesslein & Co., 270 N. Y. 55.) It does not appear that the allowance of the amendment will prejudice the defendant Di Stefano. It was, therefore, error to deny leave to make the amendment.

The orders should be reversed, with $10 costs and disbursements, and motion returnable below on April 10, 1956 granted.

Hoestadter, Aurelio and Tilzer, JJ., concur.

Orders reversed, etc.

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Per Curiam.

The proposed amendment of the title in the summons, complaint, and other pleadings was merely to change the designation of the defendant Di Stefano from his representative capacity as executor to his individual capacity. Such an amendment does not bring in a new or different party and is, therefore, permissible notwithstanding that at the time of the amendment the period of limitation has already run. (Boyd v. United States Mtge. & Trust Co., 187 N. Y. 262; cf. Van der Stegen v. Neuss, Hesslein & Co., 270 N. Y. 55.) It does not appear that the allowance of the amendment will prejudice the defendant Di Stefano. It was, therefore, error to deny leave to make the amendment.

The orders should be reversed, with $10 costs and disbursements, and motion returnable below on April 10, 1956 granted.

Hoestadter, Aurelio and Tilzer, JJ., concur.

Orders reversed, etc.

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Bluebook (online)

5 Misc. 2d 683, 158 N.Y.S.2d 821, 1956 N.Y. Misc. LEXIS 1358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/di-stefano-v-di-stefano-nyappterm-1956.

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