
    Martha E. Bowen, as Administratrix, etc., of James Bowen, Deceased, Respondent, v. Phœnix Bridge Company, Appellant.
    Fourth Department,
    July 6, 1909.
    Pleading — negligence causing death — amendment changing suit by representative to one in individual capacity.
    An administratrix who brought an action in a representative capacity to recover for the death of an intestate in’ a foreign State, where the statute required such action to be brought by the decedent’s consort or ascendant or descendant relations, will not be allowed to amend the summons and complaint so as to change the action to one in her own name as consort after the Statute of Limitations has run.
    Kruse and Williams, JJ., dissented, with memorandum.
    Appeal by the defendant, the Phcenix Bridge Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 2d day of March, 1909, directing the amendment of the complaint, and also from an order entered on the 30th day of March, 1909, directing the amendment of the summons and complaint.
    
      Daniel J. Kenefick, for the appellant.
    
      Edwin L. Dolson, for the respondent.
   Spring, J.:

This action was commenced by Martha E. Bowen, as administratrix of James Bowen, deceased, and the amendment was in striking out the words showing she commenced the action in an administrative capacity. Martha E. Bowen was the consort of the deceased.

The general features involved in the appeal have been sufficiently reviewed in the opinion in Johnson v. Phœnix Bridge Co. (133 App. Div. 807).

We think this case is distinguishable from Boyd v. U. S. Mortgage & Trust Co. (187 N. Y. 262). In that case the amendment was in striking from the caption the words “as substituted trustee,” etc. It might be difficult for a person suing to ascertain positively in what capacity the defendant is to be charged with liability. The action is planted and the complaint framed from the best information available to the plaintiff. If it develops that a cause of action exists, only the defendant named in a trust capacity is liable individually; the change required to meet the development, may well be within the power of the court to make. When, however, a person brings an action he has the knowledge in himself as to the capacity in which he should sue. If he elects to allege a cause of action accruing to him as administrator and subsequently desires to amend by enabling him to sue individually, a change of plaintiff would occur and the amendment is not permissible.

The action was commenced apparently on the hypothesis that the statute of Hew York regulated the rights of the parties. The com plaint in all its details conforms to the requirements of a cause of action arising in this State. Ho cause of action upon which a recovery could be had was set forth in the complaint. By the amendment a new party is substituted who may maintain the action.

As stated in the opinion in the Johnson case above referred to, the year after the accident within which the action must he commenced is a part of th'e cause of action, instead of a statutory limitation upon the remedy. The cause of action accruing to the plaintiff individually had become extinguished when the amendment was made. It was not a defense to be interposed by the defendant. These features, it seems to me, fundamentally distinguish the case from the Boyd case cited.

The order should be reversed.

All concurred, except Williams and Kruse, JJ., who dissented in a memorandum by Kruse, J.

Kruse, J.

(dissenting):

In this case, unlike the Johnson case, no new parties are added. The only amendment is that of striking out from the title of the summons and complaint the words “ As Administratrix of the Goods, Chattels and Credits of James Bowen, deceased,” and conforming the complaint so as to show that the action is prosecuted by the plaintiff individually and not as administratrix.

I think it clear that the Special Term had authority to grant the amendment. (Boyd v. U. S. Mortgage & Trust Co., 187 N. Y. 262.) The case of Doyle v. Carney (190 N. Y. 386) does not, as it seems to me, conflict with the Boyd case. In that case the plaintiff, as administrator of the estate of his daughter, sought to recover the value of services rendered by her to the defendant’s testatrix. It appeared upon the trial that the daughter was a minor at the time the services were rendered, and the objection was then made that the plaintiff could not maintain the action in his representative capacity as the services belonged to him personally. Thereupon the plaintiff was allowed to amend his complaint to conform to the proof and the judgment was entered in his favor individually and as administrator for the amount of the verdict, and it was held in the Court of Appeals that such an amendment was unauthorized upon the trial, but it was not held that the Special Term would not have had the power to allow the amendment upon a proper application seasonably made therefor.

I think the order should be affirmed.

Williams, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  