sold and delivered by plaintiff, and the complaint specifically sets forth the alleged transactions and the time they were said to have occurred, and the complaint was served with the summons. There was a default in appearing and answering, and the plaintiff entered a judgment against Samuel Semel. In January of this year the plaintiff caused a notice of motion to be served upon Sigmund Semel, returnable at a Special Term of the City Court, in which notice of motion the plaintiff stated that upon the return day thereof he should ask that an order be entered

"directing that the first name of the defendant 'Samuel' Semel be corrected to 'Sigmund' Semel, and that the judgment heretofore entered, and all the other papers, pleadings, and proceedings heretofore had and filed herein, be amended accordingly, nunc pro tunc, all to be without prejudice to the proceedings heretofore had, pursuant to section 723 of the Code of Civil Procedure."

This notice of motion was accompanied by the affidavit of the plaintiff to the effect that he personally did business with "the defendant," and knew him well, and that—

"he had only just discovered that said Semel's first name is Sigmund; that the same person does business at 611 East Eighteenth street; that

on January 5, 1911, he interviewed said Semel at his place of business, and found him to go under the name of Sigmund, and found him to be the same person with whom he transacted business, arising out of which the judgment was obtained."

Upon the return day of this motion Sigmund Semel appeared and filed an opposing affidavit, in which he testified—

"that he is not the defendant in this action, and never knew of this action having been commenced or instituted until he received the papers in this motion on January 6, 1911."

He also swore that he was never served with

"any summons or complaint in any action brought in this court by the plaintiff against deponent. I know of no such case, and never knew of any such case, until I received the papers upon this application. I am not defendant in this action, and the judgment entered in this action, if there is any such judgment, is not against me."

The plaintiff filed a replying affidavit, the contents of which could not have materially aided in the determination of this motion, even if the use of such affidavit was permissible without leave of the court to file the same, service upon Sigmund Semel, and he having had an opportunity to answer. The plaintiff's motion was granted, and from the order entered in accordance therewith Sigmund Semel appeals.

The right of the court below to make the correction or amendment in strenuously denied by the appellant, and he has cited numerous cases, seemingly in full support of his position. Nearly or quite all of such cases were evidently considered by the Court of Appeals in the case of Stuyvesant v. Weil, 167 N. Y. 421, 60 N. E. 738, 53 L. R. A. 562. In that case, after reciting the facts, the court said:

"The contention that the court had no power to amend the summons and complaint as provided by the order is founded upon the claim that the court had not acquired jurisdiction of defendant Stockton by the personal service

to her given name. But we cannot concur with a view that insists upon it that any error appearing in a summons in the name of a defendant prevents the court from acquiring jurisdiction of such defendant, notwithstanding he was fully apprised, when service of the summons was made upon him, that he was the party intended to be named therein and affected thereby: a view directly antagonistic to both the letter and the spirit of sections 721 and 723 of the Code, the first of which declares that a judgment of a court of record shall not be impaired or affected, by reason of either of the following imperfections, omissions, defects, matters, or things, in the process, pleadings, or other proceedings: 9. For a mistake in the name of a party or other person, * where the correct name * has been once rightly stated, in any of the pleadings or proceedings,' while the latter section provides for correcting a mistake in the name of a party as it appears in the summons, which course presupposes, in case of prior service, that jurisdiction has already been acquired. The object of the summons is to apprise the party defendant that the plaintiff therein seeks a judgment against him, so that he may take such steps as may seem advisable to protect his interests, and in order to assure its coming to his attention the statute requires personal service of the summons to be made when it is possible to do SO. It may happen, as in this case, that the defendant's name is not correctly stated in the summons, and in such case it is the duty of the court, when properly moved, to determine whether, notwithstanding the error, the defendant was fairly apprised whether he was the party the action was intended to affect; and if the answer of the court be in the affirmative, its determination must be that the court acquired jurisdiction."

The court in this case further said:

"We have not alluded to the decision of the several Special and General Terms which the Appellate Division felt called upon to follow. Their foundations were laid long before sections 721 and 723 of the Code came into existence as marking features of a distinct legislative policy to stop the sacrifice of things of real substance upon the altar of mere technicality."

In the case of Holman v. Goslin, 63 App. Div. 204, 71 N. Y. Supp. 197, the court said:

"If the person is fairly apprised that the action is brought against him as the party intended to be affected, he is immediately in position to avail himself of every legal remedy which he might have invoked, had he been in all respects correctly named. Under such circumstances he is called upon to act, and the court acquires jurisdiction to render such a judgment as the plaintiff shows himself entitled to."

[1] These later decisions are based upon the fact that actual service of a summons and complaint has been made upon the person intended by the plaintiff to be made the defendant. A substitution of parties, of course, cannot be authorized under the guise of an amendment. Becker v. Woodcock, 136 App. Div. 589-591, 121 N. Y. Supp. 71.

[2] In the case at bar, it may be observed that the statements made by the defendant in his opposing affidavit may all be true; nevertheless there is no positive assertion that he was not served with a summons and complaint in an action in which this plaintiff was plaintiff and Samuel Semel was named as defendant. It must also be observed that there is no proof whatever that Sigmund Semel was served with the summons and complaint. The plaintiff makes no such statement. He evidently has no knowledge upon that subject. The affidavit of the person making the service states that he served the summons and complaint upon Samuel Semel and that

"he knew the person served as aforesaid to be the person mentioned and described in said summons as defendant in this action."

129 N.Y.S.-7

This is no proof that service was made upon Sigmund Semel. [3] The right to make the proposed amendment rests upon proof that Sigmund was actually served, although he might have been named in the summons and complaint as Samuel, and that he was fairly apprised that the action was brought against him as the party intended to be affected. This might have been shown by testimony taken before the judge hearing the motion, or by a referee duly appointed to take such testimony and report. As the case now stands, there is no legal competent evidence upon that question, and the order should be reversed, with leave to renew.

Order reversed, with $10 costs and disbursements, with leave to plaintiff to renew.

In re BENSEL et al., Board of Water Supply.

(Supreme Court, Appellate Division, Third Department. March 8, 1911.) Appeal from Special Term, Ulster County.

Application by John A. Bensel and others, as the Board of Water Supply of the City of New York, to acquire real estate under chapter 724 of the Laws of 1905, and the acts amendatory thereof, in the town of Olive, Ulster county, to provide additional water supply. From an order making an allowance to the commissioners of appraisal, applicants appeal. Modified and affirmed.

Argued before SMITH, P. J., and KELLOGG, SEWELL, HOUGHTON, and BETTS, JJ.

Archibald R. Watson, Corp. Counsel (Amasa J. Parker, Jr., of counsel), for appellants.

Joseph M. Fowler, for respondents.

PER CURIAM. Order modified, so as to allow the commissioners $100, instead of $490, as stated in the order, and, as so modified, affirmed, without costs.

BETTS, J. (dissenting). The report of the commission for which this charge of $490 for automobile hire was incurred is upon 17 parcels of land in above section in Ulster county, 6 of which were valued at $10 each, being simply a report on 11 parcels of property of any value. For automobile expenses connected with the inspection of such parcels, the commissioners have charged 26 trips, at $490. The full amount was allowed, in addition to other liberal allowances for expenses. The appeal is from the allowance for automobile expenses only.

The authority of the court to tax expenses of any kind for these commissioners, of course, must be derived from the statute. Section 32 of chapter 724 of the Laws of 1905, so far as material, provides as follows:

"The commissioners of appraisal appointed in pursuance of this act shall receive as compensation such fees and expenses as may be taxed by the court

the city of New York shall appear for and protect the interests of the city in all proceedings in court under this act, including the taxation of fees, compensation and expenses. * * The fees of the commissioners and the salaries and compensation of their employés and their necessary traveling expenses, and all other necessary expenses, in and about the special proceedings provided by this act, * shall be paid by the comptroller of the city of New York. * * Such fees and expenses shall not be paid until they have been taxed before a justice of the Supreme Court."

Section 5 of chapter 725 of the Laws of 1905 is practically similar to the one quoted from. It will thus be seen that the traveling expenses that the court is authorized to tax are the "necessary traveling expenses" of the commissioners.

In this particular section the parcels of land which these commissioners were appointed to appraise begin something about half a mile from the Ulster & Delaware Railroad station at West Shokan, and extend about a mile from the place of beginning. Many trains run upon this road from Kingston, which stop at this station. The motion herein is made upon all the testimony taken and proceedings had before this commission, and included therein is a large map, which shows the distance practically as above stated, as does also much of the testimony. According to the affidavit of Oliver B. Goldsmith, a special counsel representing the corporation counsel of the city of New York, filed in opposition to the commissioners' application for compensation and expenses, a map showing the locations of the parcels allotted to this commission, showing that they are all located in or near the village of Shokan, and a short distance from the West Shokan station on the Ulster & Delaware Railroad, was attached to his affidavit, but that map is not in the printed record. West Shokan is about 16 miles from the city of Kingston, on the Ulster & Delaware Railroad. The ordinary method of travel there is by the railroad and by carriage hire or livery. The affidavit of Edward F. Joyce in the record states that the city especially objected in these cases, where the property was located near railroad stations, with livery stables convenient, and the use of automobiles was unnecessary. Mr. Fowler swears that automobiles are necessary. Mr. Joyce swears that they are not, and the city of New York objects on the ground that they are not necessary. The statute provides that expenses to be allowed shall be necessary.

1 Rev. St. c. 12, tit. 4, § 3, subd. 9, in fixing what shall be county charges, provides as follows:

"The moneys necessarily expended by any county officer in executing the duties of his office, in cases in which no specific compensation for such services, is provided by law."

The Court of Appeals held, in 32 N. Y. 473, 475, 476, where the question was whether certain moneys were "necessarily expended," within the intent and meaning of that statute, that:

** 串

"The import of the words 'necessarily expended' is sufficiently evident, when we consider the purpose for which they were inserted, and the nature of the subject to which they are applied. They relate * to the necessity of the expenditures, having reference to what is due to the public and the law, in the efficient and faithful discharge of official duty. In such a connection, expenditures are to be deemed necessary, within the plain intent of the statute, when, as in the present case, they are not only needful

*

and proper-as contradistinguished from such as are needless and improvident-but also reasonable, appropriate, and customary in the discharge of the particular official duty."

See, also, cases there cited.

Applying that rule laid down by the Court of Appeals to the statute here and the nature of the work which this commission was called upon to do, I think the court will have no trouble in holding that such expenditures for automobiles were not "necessary expenses," within the meaning of the sections providing for the payment of the necessary traveling expenses of the commissioners. The usual and ordinary method of travel from Kingston, which is where most of the sessions of the commissions were held and where the courthouse is, would be by train to one of these stations on the Ulster & Delaware Railroad, and then by livery rig to the particular parcels sought to be inspected. That is the ordinary natural method of travel. Automobiles were not in common use in Ulster county in 1909, and are not now. These commissioners receive large pay from the city of New York, considering the amount of work done. They have already received $18,855 for compensation on three reports. In addition, they have been allowed two comparatively large bills each for traveling and other expenses on two reports prior to this one for reporting on 41 parcels of land, 6 of which parcels were reported worth $10 each. This commission makes numerous reports (three including only 41 parcels), including only a small number of parcels in each report, which apparently has been discovered to be the way to extract the largest amount of compensation from New York City for the average number of 50 parcels of land that are contained in each section allotted to each commission. Having been allowed large compensation for their services, this commission should not include large expenses, unnecessary expenses, and ask this court to allow them against the city of New York. The city of New York should not be treated as a conquered province, or as a prey to the spoiler, simply because it is wealthy. The city of New York is not the client of this commission, nor would any Kingston lawyer, if directed to come and see his client in the Ashokan region, go there in an automobile at $25 per trip, but would go by train in the usual, ordinary, customary way. The city of New York is simply the petitioning municipality here, which has to pay the expenses of condemnation, and should be treated no differently from any other petitioning municipality, as all litigants are equal before the law and the courts.

This charge for automobiles is not by any means the only expenses allowed these commissioners on this report. Commissioner Fowler was allowed $93.85, which included at least three trips up the Ulster & Delaware Railroad, I assume for inspection of these same parcels; Commissioner Scanlon $120.40 for traveling and other expenses, but which are not itemized, so that the court canrot determine if any of it is for traveling up the Ulster & Delaware Railroad to the parcels in question; and Commissioner Nicoll, for traveling and other expenses, $134.16, some of which were for travel on the Ulster & Dela