I concur in the result. The consent of Mary J. Stockton to the payment, on account of the second mortgage, of the surplus realized on the foreclosure sale of the first mortgage cannot be regarded as an estoppel or such an act as would cure the defect of parties in the foreclosure suit on the first mortgage. Upon the other question, concerning the misnomer of the defendant Stockton, I concur in the result only in consequence of the force of authority in this State on that subject. (Farnham v. Hildreth, 32 Barb. 277 ; Moulton v. de ma Carty, 6 Robt. 470 ; Griswold v. Sedgwick, 6 Cow. 456.) Were it an original proposition I should incline to another view. The rule in this State seems to be in conflict with that generally recognized in other jurisdictions. (1 Black Judg. § 213, and cases cited; Freem. Judg. [2d ed.] § 154, and cases cited.) We must, however, follow the law as laid down by our courts. As the defendant Stockton did not appear in the foreclosure suit, and the amendment of the summons and complaint was made without notice to her, and no amended process was ever served upon her, the defect was not cured by the order of amendment.