(dissenting).
In my view the correct path here is the one Judge Clark has so clearly discerned but has then declined to follow. That is to grant the petition for mandamus to the limited extent of directing modification of the order of the District Judge to permit the service of an amended complaint upon the partnership and to leave all questions of the effect of this action to the state court. Far from that being a profitless venture, it seems to me essential not merely to protect these petitioners, whose conduct may not have been overly appealing, but to prevent unwarranted intrusion into the domain of the New York courts where the action began and where it will end.
The extract from Chief Judge Bruch-hausen’s opinion does not fully convey the never-never quality of this case. The action giving rise to the petition for mandamus was brought in October, 1954, in the Supreme Court, Queens County, by residents of New York, tenants under leases from the petitioners, a partnership, all but one of the partners being New York residents. Plaintiffs sought to recover for damage to their property sustained in January, 1954. The real estate records of Queens County showed, as did the leases, that the premises were owned by the partners, doing business as B eland Realty Co. Nevertheless, for reasons not disclosed or, perhaps, without them, plaintiffs brought their action against Beland Realty Corporation, a New Jersey corporation. Service was made upon the building superintendent as managing agent; under New York law, although this may have been good as against the New Jersey corporation named as defendant, it would not have been against the partnership, Civil Practice Act, §§ 229, 222-a. Early in 1955 the New Jersey corporation removed to the federal court for the Eastern District of New York; the allegation of continued corporate existence in the removal petition was untruthful but this may not have been prejudicial to plaintiffs since the defendant’s answer, filed simultaneously with the petition for removal, denied ownership, operation and control of the property and the dissolution did not remove liability for any debts the corporation had. In the federal court the action slumbered, only briefly awakened by a dismissal for want of prosecution in 1956 and subsequent restoration to the calendar, until early 1959. Then a pre-trial conference was had and an order made directing a preliminary trial of the issue of liability of the corporate defendant, as distinguished from the general merits of the action. Apparently believing that such a trial would go against them, plaintiffs moved in June, 1960, to amend the caption of the action.so as to make the partners defendants in lieu of the New Jersey corporation.
The obvious reason for plaintiffs’ proceeding in this fashion was that the applicable statute of limitations, Civil Practice Act, § 49(6), was three years. It must likewise have been apparent that granting plaintiffs’ motion would immediately terminate federal jurisdiction by eliminating diversity of citizenship and would thus require remand. However, the court permitted the amendment and made clear the intended effect of this by stating, “Under Rule 15(c) of the Federal Rules of Civil Procedure amendments relate back to the date of original pleading.”
Although the order sounds in terms of “substitution” of the partners for the corporation, this is colloquial rather than technical language; “substitution,” as used in F.R.Civ.Proc. 25, 28 U.S.C., refers to cases where one person has been clothed with the rights or liabilities of another. The motion was rather for *788amendment .of the complaint under Rule 15 and of the summons under Rule 4(h).
When a summons is originally served in the federal court and the action is to remain there, .the test whether such an amendment should be allowed has been stated to be “whether, on the basis of an objective standard, it is reasonable to conclude that the plaintiff had in mind a particular entity or person, merely made a mistake as to the name, and actually served the entity or person intended; or whether plaintiff actually meant to serve and sue a different person.” 2 Moore, Federal Practice (2d ed. 1948), p. 1042. See, allowing amendment, United States v. A. H. Fischer Lumber Co., 4 Cir., 1947, 162 F.2d 872; Grandey v. Pacific Indemnity Co., 5 Cir., 1954, 217 F.2d 27; Taormina Corp. v. Escobedo, 5 Cir., 254 F.2d 171, certiorari denied 1958, 358 U.S. 827, 79 S.Ct. 44, 3 L.Ed.2d 66; Jackson v. Duke, 5 Cir., 1958, 259 F.2d 3; not allowing amendment, Kerner v. Rackmill, D.C.M.D.Pa.1953, 111 F.Supp. 150; Harris v. Stone, D.C.D.C.1953, 115 F.Supp. 531. The confused record here leaves it questionable whether plaintiffs brought themselves within this test, and the opinion of the district judge affords no indication that he applied it.
However, I do not reach that issue since I think what was done to have been improper even if that point should be taken in plaintiffs’ favor. The summons was served on the superintendent while the action was in the New York courts. Under Civil Practice Act, § 222-a, that would not have been good service against the partnership even if the summons had named the partners in the first instance. I cannot read F.R.Civ.Proc. 81(c), whereby the Federal Rules “apply to civil actions removed to the United States district courts from the state courts and govern procedure after removal,” as permitting a federal court to combine rules 4(d)(3) and (h) so as to impart retroactive validity to a state court summons where the defect was not merely improper description but improper service. In this respect the case seems to me to fall under the principle of Lambert Run Coal Co. v. Baltimore & Ohio R. Co., 1922, 258 U.S. 377, 42 S.Ct. 349, 66 L.Ed. 671, rather than of Freeman v. Bee Machine Co., Inc., 1943, 319 U.S. 448, 63 S.Ct. 1146, 87 L.Ed. 1509, see Bomze v. Nardis Sportswear, Inc., 2 Cir., 1948, 165 F.2d 33, 35. However, if a federal court does have the power to perform this Lazarus-like feat, how singularly inappropriate to use it here, where, at the moment of exercising jurisdiction to breath into the New York summons a vitality over the partners which the summons could never have had in New York, the federal court lost the very jurisdiction it was exerting!
When we get behind the procedural niceties of amendment and fictions of relation back and the fascinating metaphysical inquiry how a court can exercise a power the basis for which is destroyed by the act of exercise, one stark truth emerges. The real dispute between these litigants is whether plaintiffs should be allowed to begin formal pursuit of the individual defendants more than three years after the cause of action accrued. See Glus v. Brooklyn Eastern District Terminal, 1959, 359 U.S. 231, 233, 79 S.Ct. 760, 3 L.Ed.2d 770; Fitzgerald’s Estate, 1916, 252 Pa. 568, 97 A. 935; Dawson, Estoppel and Statutes of Limitation, 34 Mich.L.Rev. 1 (1935).. This is a controversy, mainly between residents of New York, in an action begun in the courts of New York and now being returned there, and actually being litigated in another action brought by the plaintiffs against the individual defendants in the Supreme Court, New York County, in January, 1960. The only interest a federal court may legitimately take in this controversy among residents of New York is to take no interest. If plaintiffs no longer wish to pursue the New Jersey corporation in the federal court, well and good; but the federal court should restore the action to the state court in a fashion that will leave the state court free to determine the case as the state court sees fit, see City of Waco v. United States Fidelity & Guaranty Co., 1934, 293 U.S. 140, 55 S.Ct. 6, 79 L.Ed. 244, and not impose its own views on a matter purely *789of state cognizance1 and in a manner conclusive on the state court and, so far I can see, unreviewable anywhere. Failure by the district court to do this is precisely the kind of situation calling for mandamus. 6 Moore, Federal Practice (2d ed. 1953), p. 59.
. We are toll that under New York practice, “As to new parties defendant brought in by an amendment, a suit is begun only when they are brought in by the amendment and the service of the amended process.” 2 Carmody-Wait, Cyclopedia of New York Practice (1952), p. 343. See Gray v. H. H. Vought & Co., 1st Dept., 1926, 216 App.Div. 230, 214 N.Y.S. 765; Abrams v. General Financial Corp., 1st Dept., 1948, 274 App.Div. 756, 79 N.Y.S.2d 368.