Bank of Havana v. . Magee , 20 N.Y. 355 ( 1859 )

The rules of the common law as to misnomer and pleas in abatement on account of misnomer, have, I think, very little to do with the present question. According to those rules a misnomer could only be pleaded in abatement, and we have now no such plea or answer. Under the Code, everything which goes to defeat the action, and which does not appear on the face of the complaint, is a defence, and is brought forward by answer. (Code, §§ 149, 150.)

It is one of the provisions of the Code (§ 111), that every action must be prosecuted in the name of the real party in interest, except, however, in suits brought by trustees and others acting in a representative capacity. If it appear on the face of the complaint that the suit is brought in a name which does not represent the real party in interest, no doubt the objection can be taken by demurrer. But if the defect-does not so appear, it must be defensively alleged in the answer, so as to form an issue for trial. If no such issue is framed, I think the question is not to be tried. If the plaintiff's case, as set forth in the complaint, is in other respects proved, he is entitled to a verdict and judgment, although he was not in fact the proper party to sue, or has called himself by a wrong name.

In this case, the cause of action existed in favor of Charles Cook, but the suit was brought by him in the name of The Bank of Havana. This was irregular. If Charles Cook is one party and The Bank of Havana is another, then the suit is brought in a name which does not represent the real party in interest; and this would have been a good defence if it had been brought forward at the proper time and in the proper manner. But in truth there is no Bank of Havana, and the logical consequence is that Mr. Cook has simply misnamed himself. He has taken the name which he uses in a particular business, and quite irregularly has introduced himself to the courts by that name. This he should not have done. He ought to have sued in the surname of his ancestors and the christian name given to him in baptism. But I consider this a mere irregularity in procedure, which in its nature could not be the subject of demurrer or answer. Every action, it is true, must be prosecuted in the name of the real party in interest. Therefore the assignee of a chose in action must now sue in his own name, whereas formerly he had to sue in the name of his assignor, who was the original owner. That provision of the Code is not violated when a plaintiff misnames himself. The suit is still brought in the name of the real party, although he has used an alias which is not in fact or in judgment of law his true name. It is a name which he gives to himself for the occasion. If the defendants felt themselves aggrieved by this irregularity they should have moved to set aside the first proceeding in the suit for that cause. Instead of taking that course they took issue on the merits of the controversy and went to trial. By so doing they waived the objection.

The judgment should be affirmed.

Judgment affirmed.