Ryan v. Nationwide Mut. Ins. Co.

• Decision Date: 27 February 1964
• Citation: 247 N.Y.S.2d 243,20 A.D.2d 270
• Parties: Herman RYAN and Marguerite Ryan, Appellants, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 243

247 N.Y.S.2d 243

20 A.D.2d 270

Herman RYAN and Marguerite Ryan, Appellants, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Feb. 27, 1964.

Will Gibson, Buffalo, by Gross & Shuman, Buffalo, of counsel, argued by Irving M. Shuman, Buffalo, for appellants.

Miller, Bouvier, Kratzer & Ulsh, Buffalo, argued by Gerald Bouvier, Buffalo, for respondent.

Before WILLIAMS, P. J., and GOLDMAN, HENRY, NOONAN and DelVECCHIO, JJ.

DEL VECCHIO, Justice.

Plaintiffs have appealed from a denial of a motion to amend the title of the action by changing the designation of the defendant from Nationwide Mutual Insurance Company to Nationwide Mutual Fire Insurance Company.

Plaintiffs sustained a fire in premises which were insured by an Ohio insurance carrier, Nationwide Mutual Fire Insurance Company. After filing a claim with the insurer, they were notified to submit to an examination, which was scheduled by and held at the office of the law firm appearing for defendant in this action. The letter from the attorneys concerning their examination 'pursuant to the provisions of your policy' referred to 'Nationwide Mutual Insurance Co.'

Following rejection of their claim, plaintiffs commenced this action for recovery under the policy, naming the defendant as Nationwide Mutual Insurance Company. There was in fact an Ohio insurance company bearing this name which was licensed to write liability insurance in this state; it did not provide fire coverage. At the time of this action both Nationwide Mutual Insurance Company and Nationwide Mutual Fire Insurance Company had appointed the Superintendent of Insurance as their attorney to receive service of process in the State of New York and both had designated 'E. A. Rule, Secretary' of Columbus, Ohio as the person to whom process should be forwarded.

Process in the present action was delivered to the Superintendent of Insurance and subsequently transmitted by him to E. A. Rule. Defendant served an answer containing a general denial.

After the period of limitation for the commencement of the action had run, plaintiffs discovered the omission of the word 'Fire' from defendant's name, and moved to amend the title of the action to designate the defendant as Nationwide Mutual Fire Insurance Company. The court may correct an omission at any stage of the action, if a substantial right of a party is not prejudiced (sec. 105, Civil Practice Act, now § 2001 CPLR). The motion was denied upon the ground that, if granted, it would substitute as the defendant a corporation which has never been served with process and had not been brought within the court's jurisdiction.

The record does not support this conclusion. There can be no doubt that the plaintiffs always intended to sue their fire insurance carrier, Nationwide Mutual Fire Insurance Company, and that service on that defendant was in fact effected. The...