
    Amelia Traver, by her Guardian, Respondent, v. The Eighth Avenue Railroad Company, Appellant.
    The commencement of an action, in the maiden name of a female, after her marriage, is a misnomer merely, amendable by the court, and not a ground for nonsuit upon the trial. The mistake should be met by answer.
    Admission of immaterial evidence when not calculated to influence the verdict of the jury erroneously. Query, see opinion.
    This action was brought by the plaintiff, in her maiden name, to recover damages of the defendant for an injury alleged to have been caused by the-carelessness of the defendant’s servants, while the plaintiff was a passenger upon one of its cars. After the ■ injury was received, and before the commencement of the action, the plaintiff intermarried with one Collins. 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, but should have been brought in the name acquired by marriage. The court denied 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 for the plaintiff, for $2,500. The Special Term of the Superior Court of ISTew York denied a motion for a new trial, and judgment was entered on the verdict, which was affirmed, on appeal, by the General Term, from which the defendant appealed to this court.
    
      
      Mr. Ashmead, for the appellant.
    
      John R. Reynolds, for the respondent. ,
   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. Tinder the practice prior to the Code, misnomer of either party could only be pleaded in abatement of the action. (Graham’s Practice, p. 20, 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, §§ 143-151.) The only mode of presenting such- a defense, under the Code, is by answer. No such defense is set up in the answer in the present case. It was, therefore, unavailable upon the trial. In The 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. This case goes much further than it is necessary to go in the present. In that case, upon the papers, it would appear that the action was brought by a corporation, and not Charles Cook; while, in the present, the plaintiff was-the same, whether called by the maiden or married name.

The evidence of what the plaintiff could earn, before the injury, was held, by the charge, not to be material, and the jury was instructed not to give any damages for loss of service, 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. TJpon this point, the case was tried as favorable to the defendant as the law required. No 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. No 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 concurring,

Judgment affirmed.  