Estate of Soule.

probate is sought and as to whom the parties thereto were intended to be. The names of all the executors appeared twice in the citation. The proper parties were served; they are presumed to know of the filing of a petition. They had access to it, and must be deemed to have seen and known its contents. It is made the duty of courts to disregard any error or defect in proceedings which shall not affect the substantial rights of parties. The omission complained of would seem to have been a clerical error on the part of the person writing out the citation. In these circumstances, is it not within the power of this court to amend the citation to make it correspond with the petition?

In the case of the Bank of Havana v. Magee (20 N. Y. 355) one Charles Cook, who had been carrying on a banking business under the name of "The Bank of Havana," brought an action in that name, which ought to have been in his individual name. The court of appeals held the proceedings were all amendable under section 173 of the Code of Procedure, which was similar to section 723 of the Code of Civil Procedure. The court say it is apparent from the proceedings that the parties understood each other perfectly, and that it was the duty of the court below, when the objection was taken, to order the pleadings to be amended.

[]

In the case of Risley v. Wightman (13 Iun, 163), the defendant denied that the plaintiff was ever appointed executor. The evidence showed that the plaintiff had been appointed administrator with the will annexed. The court held that the complaint was amendable, that it did not change the rights of the parties, and constituted a mere technical variance.

In the case of Phillips v. Melville (10 Iun, 211), it was sought, after taking evidence, to amend the summons and complaint by changing the action by an administratrix to one in her own favor individually. It was held that the change could not be made, for the reason

Estate of Soule.

that it made a new action, distinct and separate from the manner in which it had been commenced.

[] In Tasker v. Wallace (3 Daly, 364), an action against a stockholder upon a judgment recovered in a suit brought against "the West Side Railroad Company," under which name a judgment was recovered, upon motion afterward made, the court allowed the summons, complaint, judgment-roll and execution to be amended to make the title of the defendant "the West Side and Yonkers Railroad Company." It was held, that, as the summons had been served upon the proper officers of the company, and the amendment did not create another or different action, it was properly allowed.

[*] In the case of Tighe v. Pope (16 Iun, 180), plaintiff moved for leave to amend the summons and complaint by striking out the words, "as administratrix," and to proceed against the defendant personally. It was held by the general term of the supreme court, that the motion was proper and should have been granted, as it would have worked no change in the cause of action. The same person would be defendant and no increased burden would be imposed upon her.

[10]

In Haddow v. Lundy (3 T. & C. 777), affirmed by court of appeals,* an action by a person in her own right was changed to one in her favor as administratrix. In the New York State Monitor Milk Pan Co. (Limited) v. Remington Agricultural Works (25 Iun, 475), it was held by the general term, that an amendment was permissible striking out the defendant's name and substituting therefor the names of the three partners who had purchased the defendant's business and were carrying it on under the defendant's name. This decision was reversed by the court of appeals (89 N. Y. 22), but upon the ground that the effect of the amendment was to change the action to one against other and different parties. The

*Reported 59 N. Y. 320.

Estate of Soule.

company named represented stockholders and different interests from those represented by the parties sought to be made defendants. The court says: "While full authority is conferred for adding or striking out the name of a person or a party, or correcting a mistake in such name, it does not sanction an entire change of name of the defendant by the substitution of another or entirely dif ferent defendant."

In the case of Van Cott v. Prentice (104 N. Y. 45), an action against defendants as executors, the complaint alleged that the defendants held certain property in their representative capacity, which defendants admitted. The complaint conceded that the defendants asserted no other title or claim. After trial, a motion was made to amend the summons and complaint and ordering the judgment awarded to be entered against the defendants individually, and de bonis propriis. It was held the amendment substituted a new and different cause of action, which as individuals the defendants had had no opportunity to defend.

['] In the case of Fountain v. Carter (2 Dem. 313), a

proceeding for the revocation of probate of a will, a petition had been filed within a year, the citation was served within sixty days upon the executor; but no service, whatever, had been made within that time upon any other person entitled to be made a party. It was held by the learned surrogate, and very properly, that the proceeding should be dismissed. The time for further service had elapsed, and the petitioner had forfeited the benefit of sec

tion 2517.

{"] In Stilwell . Carpenter (62 N. Y. 639), defendant

moved to dismiss the complaint on the ground that the proof showed the plaintiff had no interest in his representative capacity; held that, as a cause of action was established in favor of the plaintiff, personally, and the complaint showed that she brought the action both as

devisee and executrix, the motion was properly denied.

VOL. XIII:-12.

Terrell v. Wheeler.

The rule laid down in the early cases was that process was not amendable where it appeared void upon is face. It was held void for what it contained, but not for the omission of some essential requirement. This the court would allow supplied,-as for instance, the clerk's signature, the seal of the court, or the name of the defendant,—after the writ was exccuted and the defendant was in custody under it (1 Tidd Pr. 161).

[1]

The test as to whether an amendment of a process is proper under the Code appears to be whether the character of the action or proceeding will thereby be changed, and if not, and the proper parties in interest have had due notice, any amendment may be made in the names or description of parties which will conform to the intention as shown in the pleadings. I cannot see that there is any prohibition against the continuance of this proceeding. I think the court has jurisdiction of the parties and subject-matter and an amendment of the citation. should be made in the interests of justice, showing the official character of the executors.

The other ground of the motion ought not to be passed upon without hearing the proofs, and this motion will, therefore, be denied.

TERRELL, RESPONDENT, v. WHEELER, IMPLEADED, &c., APPELLANT.

SUPREME COURT, SECOND DEPARTMENT, GENERAL TERM, DECEMBER, 1887.

§§ 500, 1496 et seq.

Pleading-Ejectment-Answer denying plaintiff's alleged title need not ext up evidence in support thereof-Tax sale.

In an action to recover possession of real property, a simple denial of

Terrell v. Wheeler.

plaintiff's title is the proper mode of raising an issue in regard thereto, and it is neither necessary nor proper to set out in addition that the plaintiff's title was acquired by tax sale, and that such sale was void.

Where there has been a good sale for an arrear of taxes in the city of Brooklyn, the inadequacy of the sum bid is no defense in an action by the purchaser to recover possession of the premises sold, if there was the statutory advertisement and no fraud or evil practice. (Decided December 13, 1887.)

Appeal from order denying motion for leave to amend

answer.

This is an action of ejectment. The complaint is in the ordinary form. The answer of the defendant Wheeler is a denial of the plaintiff's alleged ownership and right of possession of the property described in the complaint. The defendant also admits that he claims title to the said premises, and that the other defendants are her tenants, and are in possession under her and so hold the same; and she further denies that she or her tenants, or any of them, wrongfully withhold possession of the premises or any part thereof from the plaintiff.

After the expiration of twenty days from the service of the answer, and after the right to amend as of course had expired, and the case had been noticed for trial, the defendant Wheeler applied to the court for leave to serve an amended answer; the proposed amended answer only differing from the original answer by the addition of the following averments:

"Second. And the said defendant further alleges, as a separate defense in this action, that the plaintiff claims title to the premises described in the complaint by virtue of an alleged sale to her by the registrar of arrears of the city of Brooklyn for taxes alleged to be a charge upon the said premises; that said sale was made under color of the authority which purports to be given by the third section of chapter 114 of the Laws of the State