The action was brought on an account stated. The answer admits the statement of account between the plaintiff and the defendant, whereby it appeared that the defendant was indebted to the plaintiff in the sum of $1,885.32, and alleges as an affirmative defense that the defendant is a foreign corporation organized under the laws of the State of Illinois ; that its principal office for the transaction of business is in the city of Chicago in said State; that after the said account was stated and on or about December 1,1902, an action was commenced in the Circuit Court of Cook county, 111., by the Milwaukee Elevator Company, a corporation organized under the laws of said State,, against William B. Gottlieb, the plaintiff herein, to recover from the plaintiff a sum exceeding $4,000 as damages for an alleged breach of a contract; that the said Milwaukee Elevator Company caused to be duly issued in said action out of said Circuit Court of Cook county a writ of attachment against the plaintiff, directed to the sheriff of Cook county, commanding the said sheriff to attach the rights, moneys, credits and effects of this *384plaintiff found in said county, and further commanding the said sheriff to summon this defendant as garnishee to be and appear-at the said court on the third Monday of December, 1902; that said writ was duly served on this defendant by the said sheriff on or about December 1,1902; that process in said action was duly served upon the plaintiff in the manner provided by the laws of the State of Illinois, and that said plaintiff had actual notice of the pendency of said action, of said writ of attachment and of said garnishee process against this defendant; that the plaintiff failed to appear in or defend the action, and that on or about February. 19, 1903, judgment was duly entered in said action against this plaintiff, and against this defendant as said garnishee, for the sum of $1,885.32; that thereupon and on or about February 19, 1903, this defendant paid said judgment against it as. garnishee, the said sum being the same amount as was due from the defendant to the plaintiff as shown by said account stated.
The case coming on for trial, the defendant, accepting the affirmative, offered in evidence an authenticated copy of the record in the action of the Milwaukee Elevator Company against “ W. B. Gottleib,” in the Circuit Court of Cook county, 111. That record was objected to by the plaintiff, one of the objections being that it appeared upon the face of the record that the action “ is one instituted by the Milwaukee Elevator Company against one W. B. Gottleib, who is not a party to this suit.” This objection was overruled and the plaintiff excepted. A witness was then called by the defendant, who testified that he had a conversation with the plaintiff relative to a litigation between him and the Milwaukee Elevator Company-; that the plaintiff told the witness that the elevator company sued him in Chicago for a difference on barley, which was shipped to him and not accepted. Upon cross-examination the witness testified that he knew that the matter had been thrashed out before the board of managers of- the Produce Exchange and that they had found in favor of the plaintiff. The defendant then rested. The plaintiff, was called as a witness and testified that on December 1, 1902, or prior thereto, he was not indebted to the Milwaukee Elevator Company in any sum of money whatever; that prior to that -time the Milwaukee Elevator Company instituted a proceeding against the plaintiff in the New Tork Produce Exchange for his *385refusal to. accept 25,000 bushels of barley prior to December 1,. 1902; that the plaintiff defended those proceedings and the case was tried out before the board of managers of the New York Produce Exchange; that he never stated to the witness called by the defendant that the Milwaukee Elevator Company had sued him for $6,000 or $8,000< At the close of the testimony, the defendant moved for the direction of a verdict for the defendant, and the plaintiff moved for the direction of a verdict for the plaintiff. The court granted the defendant’s motion, whereupon the plaintiff asked leave to go to the jury, which was denied, and to which the plaintiff excepted.
Upon the face of the record in the Illinois court, the defendant .was “ W. B. Gottleib,” while the plaintiff in this action is “ William B. Gottlieb.” It was alleged by the defendant that the plaintiff was a resident of the State of New York, and not a resident of the State of Illinois, and there is nothing upon the face of the record to show that the plaintiff in this action was the same person sued in the courts of the State of Illinois. The last name is spelled differently, and the first or Christian name of the defendant in the Illinois action is “ W.; ” that in this action is “ William.” The first or Christian name'of a party is an essential part of his name. In Wiehle v. Schwarz (54 N. Y. Super. Ct. 169) the General Term of the Superior Court of the city of New York held that a foreign judgment entered as against a defendant, designated as “ A. Schwarz ” could not sustain an action against “ Anton Schwarz.” Upon the face of the record the proceeding was not against the plaintiff, but against “ W. B. Gottleib.” In Farnham v. Hildreth (32 Barb, 277) it was held that a judgment could only be enforced against the person or property of the individual named; and that service of a summons upon a party by a wrong name does not give the court jurisdiction over his person, and his appearance cannot be compelled. (See, also, Griswold, v. Sedgwick, 6 Cow. 456, and cases cited.) If the testimony offered by the defendant was admissible, I do not think it was sufficient to identify this plaintiff with the defendant in the action in Illinois. The- only admission that the plaintiff was said to have made was that he had been sued in Chicago by this corporation for $6,000 or $8,000. That may be true, and still the *386action in which this judgment in Illinois was entered was against the person described as defendant, and not against this plaintiff. There is río claim of any personal service on the defendant, nor was there any evidence that the defendant had notice of the commencement of the action. There is no presumption that a summons mailed in Chicago and addressed to “ W. B. Gottleib, New York,” would ever r.each this plaintiff. But assuming that this testimony would be some evidence of the fact of the identity of the plaintiff with the defendant in the Illinois action, the plaintiff denied having made any such statements- as were testified to; and that, I think, would present a question for the jury as to whether the defendant in the Illinois action was the plaintiff in this action. It is quite clear, however, that evidence that the party named in the Illinois action was intended to he the same person as the plaintiff in this action would not justify the court in enforcing the Illinois judgment against the plaintiff. (Farnham v. Hildreth, supra; Griswold v. Sedgwick, supra.) The defendant admitted its indebtedness to the plaintiff; and to entitle it to be relieved from its obligation it was required to prove that the action in Illinois was against the plaintiff in this action. The evidence here is not sufficient, in my judgment, to justify the court in holding that that fact was proved, and the record in the Illinois court was not competent evidence against the plaintiff.
Judgment affirmed, with costs.