The defect is thereby cured. The identity of the plaintiff below being ascertained, it was the duty of the defendant there to have availed himself of the variance before the -justice, instead of which he did not appear, and suffered judgment by default, (a)
Judgment affirmed.
а) The statute of amendments, 2 R. S. 2d edit. 343, § 1, extending as It does to justice’s courts, id. 158, § 1, permits an amendment of the name of a plaintiff erroneously stated in the process ; Brace et al. v. Benson, 10 Wend. 213; but the amendment must be moved for and procured before proceeding to judgment. See Willard v. Missani, 1 Cowen, 37. 2 Cowen’s Treatise, 2d edit. 585, 586. Gordon v. Kennedy, 2 Binney, 291. State v. Collins, 2 Harrington, 216.