known to all the men involved that plaintiff's attorney had directed these suits against the wrong defendant, and that he should have sued the New York corporation and not the New Jersey corporation. The attitude of Grassmann's attorney, all through the arguments, and in his brief as well, has been that there was no duty devolving on the New York corporation to advise counsel for plaintiff of the fact that the New Jersey corporation had had no connection whatever with the tramway at Mt. Kaala, nor, was there any such duty devolving on the New Jersey corporation. I will deal with this point later.
Turning now to the pleadings: The answers filed deny the negligence alleged in the complaints and go one step further. They allege contributory negligence by the deceased and the three others who were injured. This latter defense could in no way be availed of by the New Jersey corporation, since, having no connection whatever with the accident, contributory negligence could neither aid nor injure that corporation. Moreover, the only honest answer the New Jersey corporation could file was one in which it would plead no connection whatever with the accident. Had there been no like named and controlled New York corporation, such an answer would undoubtedly have been filed. Under ordinary circumstances one who sues a wholly innocent defendant would learn of his mistake by telephone at once. Such is the normal way of sound practitioners. The attorney for such an innocent defendant would file no answer such as was filed here. One cannot escape the conclusion that the answers filed in these cases were interposed for no other purpose than to lull the plaintiff into a sense of security until the fast running Statute of Limitation would rise up and prevent suits against the New York corporation. Thus serving as an answer in the interest of the New York corporation only. To do this required the active connivance and co-operation of the New York corporation through its well advised president and all around connected agents.
When the foregoing factors are considered, and it is understood that the services of process in these cases would have been valid beyond peradventure as service on the New York corporation but for the absence of a recital of the correct name of the state of its incorporation, and that the service as made actually brought notice home to the New York corporation that plaintiff's attorney intended to sue, not the New Jersey corporation but that certain Interstate Equipment Corporation which had functioned at Mt. Kaala, the New York corporation, and that both these Interstate corporate entities were dominated by the same man, Grassmann, the error, insofar as the New York corporation is concerned, amounts to no more than an amendable misnomer and does not constitute a mistake of identity. This is but another way of saying that by reason of the conduct of the duly constituted officers and agents of the New York corporation and its failure to speak in time after notice, leaves it estopped from saying it is not before this Court.
While it is true that the answers filed herein do not contain the name or express authority of the New York corporation, yet nevertheless, this court may look into and behind those answers in the exercise of its ever present equity powers, and it does so in these cases for the purpose of ascertaining whether the New York corporation has in fact, by the conduct of its officers and agents, entered its appearance in these cases, and filed its answers therein, under the mask of the New Jersey corporation. If it has done so this court will hold jurisdiction over it.
In pondering the conduct of the New York corporation and its agents, as depicted by the record here, the true seeker after justice would find nothing to prompt his applause. Indeed there is much which would tend to excite his emphatic disapproval.
While it is true that, as a general rule, there would be no obligation upon either the New York or New Jersey corporation or their attorney, to advise plaintiff's attorney of his mistake before the Statute of Limitations had run, as here, and as a general rule, one in the position of a plaintiff's attorney must be diligent in ferreting out the proper parties defendant before suit, as argued by defendant's attorney, yes, even to the extent perhaps of a Dun & Bradstreet report as Grassmann suggests. However, no such rules, or absence of rules, can be raised to defeat a party where, by the overt acts and inexcusable conduct of the other, he has been lulled into a position of false security. Particularly is this so where, for purposes of delay, sham pleas have been entered, as here.
In conclusion I find that by reason of the matters and things hereinbefore recited, the New York corporation has voluntarily entered this court, through its duly constituted officers and agents and through them it has on full notice accepted service of process, and filed its answers in these cases. The amendments prayed for are allowed and the New York corporation may amend its answers to conform with its position as the true and proper defendant in these cases.
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