Lawrey v. . Hines

142 N.E. 576, 237 N.Y. 174, 1923 N.Y. LEXIS 700

• Court: New York Court of Appeals
• Decided: December 27, 1923
• Status: Published

Opinions

Cardozo, J.

I think it is fairly to be inferred, both from what the defendant says and from what he omits to say, that the officer of the corporation to whom the summons was delivered was the duly authorized representative of the federal agent, empowered to accept delivery of the summons in the latter’s behalf. No point is urged to the contrary. The failure to make the objection is persuasive that the facts do not justify the making.

In these circumstances our decision in Hungerford Brass & Copper Co. v. Hines (236 N. Y. 528) would be authority for an order amending the summons if such an order had been requested. The difficulty is that the plaintiff has not asked for an amendment, but is content with the action as he has brought it. He stands upon his right to charge Walker D. Hines with liability for injuries suffered during the period when Mr. Hines was director-general of railroads, though action was not brought till federal control was ended. The right does not exist.

The order of the Appellate Division and that of the Special Term should be reversed with costs in all courts, and the motion for judgment dismissing the complaint with costs granted, unless within thirty days and on payment of said costs the Special Term permits an amendment of the summons by substituting the name of the proper defendant.