TRAVER against THE EIGHTH AVENUE RAILROAD COMPANY

TRAVER against THE EIGHTH AVENUE RAILROAD COMPANY. Court of Appeals ; June Term, 1867. Misnomer. —Appeal. —Amendment. —Parties. Under the Code of Procedure, the only way to take advantage of a mere misnomer, —e. g., the bringing of an action by a married woman in her maiden name,—is by answer; if not set up by answer, advantage cannot be taken of it on the trial. A mere misnomer in pleading is a formal error, amendable in the court of original jurisdiction; and will not be noticed in the court of appeals. Where a minor child is injured by negligence, the parent may recover fi.r the loss of service for the remainder of the period of minority; and, if the disability continue beyond that period, the child may recover for such further loss. Appeal from a judgment. This action was brought in the superior court of New York, on behalf of Amelia Traver, by A. Bull, her guardian, to recover damages of the, defendants for an injury alleged to have been caused by the carelessness of the defendants’ servants, while the plaintiff was a passenger on one of their cars. After the injury was received, and before the commencement of this action, the plaintiff intermarried with one Collins, but in the summons and complaint in the action she was designated by her maiden name. The plaintiff was about eighteen years old at the time of the injury, and but a few months past twenty-one at the time of the trial. Upon the trial, evidence was received as to how much the plaintiff could earn per week, prior to the injury, and that some money had been expended in taking care of her the last year preceding the trial, to which the defendant’s counsel excepted. The defendant moved for a dismissal of the complaint, upon the ground, among others, that the action was improperly brought in the maiden name of the plaintiff instead of the name acquired by marriage. The court dismissed the motion, and defendant’s counsel excepted. It appeared that an action had been previously brought by the plaintiff’s mother, and a recovery had for the loss of services of the plaintiff, and the expense of taking care of her. The court charged the jury that nothing could be recovered for these causes in the present action. The jury rendered a verdict in favor of the plaintiff for twenty-five hundred dollars. The superior court at special term, denied a motion for a new trial. The j udgment entered on the verdict was affirmed, on appeal, by the court at general term, from which the defendants appealed to this court. J. W. AsJimead, for the defendants, appellants. J. II. Reynolds, for the plaintiff, respondent. I. There was no ground of pretense for dismissing the complaint. A plain case was made for the jury, and it was submitted to them under a charge to which nó exception was taken. II. There was no error in respect to the admission or rejection of evidence. (1.) It was proper to show how much the plaintiff could earn a week before the injury, and how the injury disabled her. The judge in his charge to the jury told them that the plaintiff could recover nothing for loss of service or medical treatment or nursing until after she was of age. The mother had recovered for that in an action brought in the marine court. (2.) It was a mere matter of discretion with the court to allow the plaintiff to call Dr. Benson after the case had been rested ; and no exception to such ruling can prevail. III. This is a frivolous appeal, and the judgment should be affirmed with costs, and ten per cent, damages. [MAJORITY — Grover, J.] Grover, J. Commencing the action in the maiden name of the plaintiff, instead of that acquired by marriage, was a misnomer merely. There was no pretense but that the plaintiff was the proper person to sue, and the only one that could maintain an action for the injury sought to be redressed. Under the practice prior to the Code, misnomer of either party could only be plead in abatement of the action (2 Graham Pr., and cases cited). Neglecting to interpose such plea waived any advantage to the defendant therefrom. The mistake was amendable by the court. The misnomer was not ground of nonsuit upon the trial. It was not like the case of bringing an action by the wrong party ; that was ground of nonsuit. By the Code, pleas in abatement are abolished {Code, §§ 142-151). The only mode of presenting such a defense is, under the Code, by answer. No such defense is set up in the answer in the present case. It was, therefore, unavailable upon the trial. In Bank of Havana v. Magee (20 N. Y., 355), it was held that although there was no such corporation, and that it was only a name assumed by Charles Cook for the transaction of his banking business, yet bringing the action by Cook in such name was but a mere formal error, amendable in the courts of original jurisdiction, and to be disregarded in this court. That case goes much further than it is necessary to go in the present. In that case, upon the pajDers, it would appear that the action was brought by a corporation, and not by Charles Cook, while in the present the plaintiff was the same, whether called by the married or maiden name. The evidence of what the plaintiff could earn before the injury was held by the judge not to be material, and the jury were instructed not to give any damages for loss of services, inasmuch as the plaintiff’s mother had previously recovered therefor. This direction would not have cured the error (if one was committed) in receiving the evidence, if that was such as was calculated to create a prejudice in the minds of the jury, and influence them in fixing the amount of damages, unless it appeared from the whole case that the jury were not so influenced (Erben v. Lorillard, 19 N. Y, 299). The evidence in the present case was not likely to influence the jury upon the question of damages, unless they were convinced that the injury of the plaintiff was of a character to prevent her from attending to her business after she was twenty-one ; and if so convinced, the evidence was proper for the consideration of the jury. When a child under twenty-one is injured, the parent can recover for loss of service until the arrival of the child to that age, and, if the disability continues beyond that time, the child may recover for the loss. Upon this point the case was tried as favorably to the defendants as the law required. Ho claim for loss of service was made by the plaintiff after she was twenty-one, and the jury were told that the mother had recovered for such loss up to that time. Ho ground of objection to the proof of what the expense of taking care of the plaintiff had been, was stated. The exception to the proof does not, therefore, raise any question for the consideration of this court. The judgment appealed from must be affirmed. All the judges concurred. Judgment affirmed.