reflected in the case of Davis v. L. L. Cohen & Co., supra, where action was brought against a railroad company and service had on a local officer. A motion to substitute the Director General as defendant was denied even though the railroad was in his hands when the cause of action arose, and despite the fact that service on the same local officer would have been a proper service on the Director General.
In my opinion, action here was brought against the individual, Eli Metzger, and service was had upon him. While the complaint undoubtedly designates Eli Metzger as the defendant, the erroneous description 'trading as or manager of Morris Management Company', did not necessarily indicate to Eli Metzger or Morris Management Company that the Company, rather than Metzger, was the party intended to be sued. Even noting that the person served was also an officer of the corporation and therefore a proper person to receive service on its behalf, the corporation, and Metzger as well, could reasonably have been, and in fact were, misled into believing that the action was one against Metzger.
The mere fact that Metzger is neither trading as nor manager of Morris Management Company would not prevent judgment against him: execution could be had on his property despite the erroneous description. However, if execution were levied in the original suit on property of Morris Management Company, the latter would have an impregnable defense.
It may be argued that the erroneous description 'trading as Morris Management Company' might indicate that plaintiff intended to sue the Company, rather than the person. The difficulty is that Metzger was also described, in the alternative, as 'manager of Morris Management Company,' which clearly discloses that the suit was brought against the person; if plaintiff wished to sue the Company, action against its manager personally was hardly the way to do it.
Further, it is not necessarily true that the allegations of the complaint would have indicated that the plaintiff intended to sue the Company rather than Metzger. Under the Rent Regulation for Housing, on which plaintiff's claim is founded, an agent may be held personally liable for violations as well as the principal. See Dorsey et al. v. Martin, D.C., 58 F.Supp. 722; Ricks v. Corak, D.C., 65 F.Supp. 960. The personal liability of Metzger is not a mere fiction similar to that of a collector of internal revenue. See Hammond-Knowlton Co. v. United States, 2 Cir., 1941, 121 F.2d 192, 203.
The unusual alternative description merely emphasizes the reasonableness of the conclusion on the part of Metzger that it was he whom the plaintiff wished to hold personally liable for his actions, either as principal or agent, whichever proved to be the case. Accordingly, it was Metzger who appeared and answered, rather than the Company.
To say that the Company is now in court is contrary to the plain fact. It was not the Company that was misdescribed, it was Metzger. The action was brought against Metzger, and service was had upon him. It was Metzger who appeared. The coincidence that Metzger, by virtue of his office, was competent to receive service on behalf of the Company, is immaterial, for the Company was not bound to take cognizance of an action against Metzger. Cf. Davis v. L. L. Cohen & Co., supra. The instant case differs from McDowell v. Kiehel, since there the plaintiff sought to change the capacity in which the defendant was sued, and, as the court pointed out, the defendant was in court. Here, the plaintiff is seeking to substitute for the defendant a different party, the Company, a legal entity, which is not in court, and the substitution of it for Metzger as defendant amounts to a new cause of action. Schram v. Poole, supra.
It is my conclusion that the amendment would bring in a new party. To permit an amendment relating back to the original complaint will deprive the Company of its defense, the running of the statute of limitations against a large part of plaintiff's claim. To construe the complaint as having stated a claim against the Company, and to construe the service as having been competent to bring the Company into court would, in my opinion, cause the Company to suffer for the indefiniteness and lack of diligence of the plaintiff. Of course, since the statute of limitations has not run in favor of the Company on all of the plaintiff's claim, the Company may still be subject to liability to a limited extent upon the merits, and the plaintiff may choose to act accordingly.
The motion is denied and an Order may be entered pursuant hereto.