Chakles P. Halt, Chief Justice.
The amendment wag to correct a mistake in the name of the party, which the court have authority to make when it is in the furtherance of justice. It is a matter purely in the discretion of the court, and could be made after judgment and the return of the execution.
The summons was served upon the president of the company, who is also the defendant in the present action, so that it was not by amendment creating another and different action, but curing a defect in the name of the defendants, in an action which had been brought in good faith against them.
In the People v. Ames (35 N. Y. 484), the court allowed the sheriff’s return' to be amended after an action had been brought for a false return, and it was held by the Court of Appeals not only that the court had power to do this, but that the amendment gave to the return the same effect as if it had been in the amended form at the time the return was made; and a writ of replevin in the cefit was allowed, after the execution of the writ, to be amended, so as to change it into an action in the detvnet (Anon. 4 Hill, 603). It was allowed, upon showing to the court that the plaintiff had intended to bring the action in [366]*366the detvnet, hut by an oversight or mistake of the attorney, the words imputing an unlawful taking were inserted (and see Leetch v. The Atlantia Mutual Insurance Co. 4 Daly, 518 ; and Diamond v. The Williamsburgh Insurance Co. Id. 494, and the cases there cited, in respect to the extensive power of the court to remedy defects by amendment). In Thomas v. Leonard (11 Wend. 53), an amendment was allowed in respect to a clerical error which would have been fatal, after a motion had been made in arrest of judgment, and as to other cases in which any material amendments may be allowed after judgment and execution, see Grraham’s Practice, 663, 664, 665, 2d ed.
In Porter v. Goodman (1 Cow. 414), an amendment was allowed by adding the name of a plaintiff, omitted by mistake, although an execution had been issued, levied, and an action of trespass brought by defendant, on the ground that the levy under the execution was irregular and void.
In Mitchell v. Van Buren (27 N. Y. 300), which was a judgment by confession upon a statement in writing, signed and verified by the defendant under the Code, the plaintiff was allowed to amend by inserting a new verified statement setting forth the facts more specifically in support of the judgment, after a motion had been made by a judgment creditor of the defendant to set aside the judgment for the insufficiency of the statement, the judgment being a lien on the debtor’s real estate. Judge Emmot dissented, upon the ground taken in the present case, that the court could not, by amendment, affect the rights of third parties, in respect to whose judgments the judgment confessed was, by statute, inoperative and void, the statement upon which it was entered not being in compliance with the Code. But the Court of Appeals affirmed the action of the court below, upon the ground that the courts have jurisdiction over their records, and may at all times relieve against errors and mistakes by amendments, or by allowing papers to be filed or entries made nunc fro tunc, in furtherance of justice, which was the-case there, it having been shown that the proceeding was in good faith, and that the intention of the parties was to create a valid judgment for a debt honestly due, a decision which it appears to me covers the point raised in this case.
[367]*367The plaintiff here meant to bring the action against this particular corporation, and served the summons upon its president. It was in furtherance of justice, therefore, to allow all the proceedings to be amended, so as to add the words omitted by mistake in the corporate name nune pro tuno, the effect of which was the same as if the omitted name had been used from the beginning. The doing of the act now (nunc), when it is actually done, being allowed to pass as a substitute and equivalent for (pro) doing it then (tunc) or before (Burrill’s Pr. 762; Tidd’s Pr. 932, 933, 9th London ed.; Flower v. Bolingbroke, 1 Str. 639).
The transfer to the company of patents, the value of which as it turned out was nothing, but “ at the time,” to use the language of the witness, “was considered invaluable,” was not,-in my opinion, a payment “in money” within the meaning and intent of the statutes (The People v. Troy Hose Co. 44 Barb. 634, 635; Haviland v. Chace, 39 Id. 283). The transfer of a patent which had no ascertained value; which, in the language of the witness, “ as it turned out was worth nothing,” cannot be regarded as “ money,” or its equivalent, because those engaged in the management of the company believe at the time it is valuable, and receive it after organization, upon some fixed estimate of its value, between them and the subscriber, as so much money. Before a thing can be regarded as money or its equivalent, it must have an actual, positive, and ascertained value —a value so thoroughly ascertained and fixed at the time, that it can at once be changed into money, of which it is regarded as the equivalent. The value of a patent right depends upon the invention. The pecuniary value of it is a mere matter of anticipation, until the utility of the invention is established by practical use, and is a source of ascertainable and known pecuniary profit. Ho such test existed here, but the value of these patents turned out to be nothing, as has been the caáe with many patented inventions.
Three of the cases cited, Beach v. Smith (28 Barb. 264); Syracuse, &c. R. R. Co. v. Gere (4 How. 392); and The Black River and Utica R. R. Co. v. Clarke (25 N. Y. 208), afford no countenance to such a construction. On the first, [368]*368a debt due to the subscriber for services rendered to the company, and which it would have had to pay as money, was allowed upon the subscription as so much money, the subscriber crediting the company with the payment of the debt. In the second, the receiving of a check for the ten per cent, required to be paid in cash, was held, in an action upon the check, not to be such a violation of the act as to render the check void in the hands of the company. And in the third, a subsequent payment of the full amount satisfied the statute, although a short interval occurred between the actual subscription and the payment of the money. The subscription was regarded as conditional, and as having taken effect upon the payment of the money.
The case of The East N. Y. &c. R. R. Co. v. Lighthall (6 Robt. 407) is the one chiefly relied upon by the respondent, and if the case goes to the length of upholding such a payment as is relied upon in this case, I cannot give my assent to it. It was, however, in some respects distinguished from the present case. It was an action by a railroad company to recover the amount of the defendant’s subscription, after the president, who had authority to receive subscriptions, agreed to take for the subscription one hundred shares of the stock of a coal company, at the price which the defendant had paid for that stock, and which shares the defendant transferred to the president, upon the president’s giving a written agreement to deliver to the defendant thirty shares of the capital stock of the railroad company, when the road was completed.
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Chakles P. Halt, Chief Justice.
The amendment wag to correct a mistake in the name of the party, which the court have authority to make when it is in the furtherance of justice. It is a matter purely in the discretion of the court, and could be made after judgment and the return of the execution.
The summons was served upon the president of the company, who is also the defendant in the present action, so that it was not by amendment creating another and different action, but curing a defect in the name of the defendants, in an action which had been brought in good faith against them.
In the People v. Ames (35 N. Y. 484), the court allowed the sheriff’s return' to be amended after an action had been brought for a false return, and it was held by the Court of Appeals not only that the court had power to do this, but that the amendment gave to the return the same effect as if it had been in the amended form at the time the return was made; and a writ of replevin in the cefit was allowed, after the execution of the writ, to be amended, so as to change it into an action in the detvnet (Anon. 4 Hill, 603). It was allowed, upon showing to the court that the plaintiff had intended to bring the action in [366]*366the detvnet, hut by an oversight or mistake of the attorney, the words imputing an unlawful taking were inserted (and see Leetch v. The Atlantia Mutual Insurance Co. 4 Daly, 518 ; and Diamond v. The Williamsburgh Insurance Co. Id. 494, and the cases there cited, in respect to the extensive power of the court to remedy defects by amendment). In Thomas v. Leonard (11 Wend. 53), an amendment was allowed in respect to a clerical error which would have been fatal, after a motion had been made in arrest of judgment, and as to other cases in which any material amendments may be allowed after judgment and execution, see Grraham’s Practice, 663, 664, 665, 2d ed.
In Porter v. Goodman (1 Cow. 414), an amendment was allowed by adding the name of a plaintiff, omitted by mistake, although an execution had been issued, levied, and an action of trespass brought by defendant, on the ground that the levy under the execution was irregular and void.
In Mitchell v. Van Buren (27 N. Y. 300), which was a judgment by confession upon a statement in writing, signed and verified by the defendant under the Code, the plaintiff was allowed to amend by inserting a new verified statement setting forth the facts more specifically in support of the judgment, after a motion had been made by a judgment creditor of the defendant to set aside the judgment for the insufficiency of the statement, the judgment being a lien on the debtor’s real estate. Judge Emmot dissented, upon the ground taken in the present case, that the court could not, by amendment, affect the rights of third parties, in respect to whose judgments the judgment confessed was, by statute, inoperative and void, the statement upon which it was entered not being in compliance with the Code. But the Court of Appeals affirmed the action of the court below, upon the ground that the courts have jurisdiction over their records, and may at all times relieve against errors and mistakes by amendments, or by allowing papers to be filed or entries made nunc fro tunc, in furtherance of justice, which was the-case there, it having been shown that the proceeding was in good faith, and that the intention of the parties was to create a valid judgment for a debt honestly due, a decision which it appears to me covers the point raised in this case.
[367]*367The plaintiff here meant to bring the action against this particular corporation, and served the summons upon its president. It was in furtherance of justice, therefore, to allow all the proceedings to be amended, so as to add the words omitted by mistake in the corporate name nune pro tuno, the effect of which was the same as if the omitted name had been used from the beginning. The doing of the act now (nunc), when it is actually done, being allowed to pass as a substitute and equivalent for (pro) doing it then (tunc) or before (Burrill’s Pr. 762; Tidd’s Pr. 932, 933, 9th London ed.; Flower v. Bolingbroke, 1 Str. 639).
The transfer to the company of patents, the value of which as it turned out was nothing, but “ at the time,” to use the language of the witness, “was considered invaluable,” was not,-in my opinion, a payment “in money” within the meaning and intent of the statutes (The People v. Troy Hose Co. 44 Barb. 634, 635; Haviland v. Chace, 39 Id. 283). The transfer of a patent which had no ascertained value; which, in the language of the witness, “ as it turned out was worth nothing,” cannot be regarded as “ money,” or its equivalent, because those engaged in the management of the company believe at the time it is valuable, and receive it after organization, upon some fixed estimate of its value, between them and the subscriber, as so much money. Before a thing can be regarded as money or its equivalent, it must have an actual, positive, and ascertained value —a value so thoroughly ascertained and fixed at the time, that it can at once be changed into money, of which it is regarded as the equivalent. The value of a patent right depends upon the invention. The pecuniary value of it is a mere matter of anticipation, until the utility of the invention is established by practical use, and is a source of ascertainable and known pecuniary profit. Ho such test existed here, but the value of these patents turned out to be nothing, as has been the caáe with many patented inventions.
Three of the cases cited, Beach v. Smith (28 Barb. 264); Syracuse, &c. R. R. Co. v. Gere (4 How. 392); and The Black River and Utica R. R. Co. v. Clarke (25 N. Y. 208), afford no countenance to such a construction. On the first, [368]*368a debt due to the subscriber for services rendered to the company, and which it would have had to pay as money, was allowed upon the subscription as so much money, the subscriber crediting the company with the payment of the debt. In the second, the receiving of a check for the ten per cent, required to be paid in cash, was held, in an action upon the check, not to be such a violation of the act as to render the check void in the hands of the company. And in the third, a subsequent payment of the full amount satisfied the statute, although a short interval occurred between the actual subscription and the payment of the money. The subscription was regarded as conditional, and as having taken effect upon the payment of the money.
The case of The East N. Y. &c. R. R. Co. v. Lighthall (6 Robt. 407) is the one chiefly relied upon by the respondent, and if the case goes to the length of upholding such a payment as is relied upon in this case, I cannot give my assent to it. It was, however, in some respects distinguished from the present case. It was an action by a railroad company to recover the amount of the defendant’s subscription, after the president, who had authority to receive subscriptions, agreed to take for the subscription one hundred shares of the stock of a coal company, at the price which the defendant had paid for that stock, and which shares the defendant transferred to the president, upon the president’s giving a written agreement to deliver to the defendant thirty shares of the capital stock of the railroad company, when the road was completed. In this case, the stock received had an ascertained value, as the defendant transferred it to the company at the price he paid for it; which distinguishes it from the present case, though I am far from admitting that the receipt of the stock of a corporation, at the price the subscriber paid for it, would necessarily be a payment in money or its equivalent, within the meaning of the statute. But, apart from that question, the Superior Court were of opinion that the question of the right of the corporation to receive this stock was not involved. They had received it through their authorized agent, in payment of the defendant’s subscription, and although they had not reaped the fruits of [369]*369the transaction, it was held that they ought to he concluded by the act of their agent, and not allowed to inflict a wrong upon the defendant, an innocent person, who, believing in the competency of the agent to act for his principal, had dealt with him accordingly. Whether the court was right, or not, in so holding, it was the ground upon which they placed their decision, and distinguishes the case, as I have said, from the one now before us. It is suggested by the appellant that the judge granted the nonsuit upon the authority of this case, which he may well have done, upon the mere presentation of it at the trial, without sufficient opportunity by a careful examination to ascertain exactly what was decided by it.
The defendant was the owner of the stock issued to Harvey, the patentee, in part payment of sixteen patents. The transfer of these patents must have been received as a payment in money of the ten per cent, required to be paid by the 4th section of the act (L. 1830, p. 213), by the subscriber at the time of subscribing, upon the amount subscribed by him, and the defendant as a holder of this stock, was liable, under § 10 of amended act of 1854 (3 Edm. R. S. p. 646), to the amount of ten per cent., that amount being unpaid upon the stock held by him (Bailey v. Hollister, 26 N. Y. 112 ; Mann v. Currie, 2 Barb. 294; Mead v. Keeler, 24 Id. 20 ; Johnson v. Underhill, 52 N. Y. 203 ; Eaton v. Aspinwall, 19 Id. 119). The nonsuit was "therefore, improperly granted, and the judgment should be reversed, and a new trial ordered, with costs to abide the event.
Joseph F. Halt, J., concurred.