
    Louis Lieberman, an Infant, by Abraham Lieberman, his Guardian ad Litem, Respondent, v. The Third Avenue Railroad Co., Appellant.
    (Supreme Court, Appellate Term,
    January, 1899.)
    Infant — Emancipation — Father not estopped as guardian ad litem in infant’s action for negligence — Estoppel by pleading.
    Unless an infant has been emancipated his services during minority belong to his father, and where he sues by his father as guardian ad litem, among other things, for a loss of wages resulting from the alleged negligence of a street railroad corporation, he cannot recover for such loss. Although the father as guardian ad- litem verified the complaint in which the infant alleged that the accident had rendered him unable to earn any further wages, such verification does not estop the father from subsequently suing the corporation, as an individual, to recover the loss of the infant’s wages, as an estoppel by pleading can only arise where the subsequent action is between the same parties and the plaintiff is suing in the same right or capacity.
    Lieberman v. Third Ave. R. R. Co., 25 Misc. Rep. 296, modified and affirmed.
    Appeal by the defendant from the affirmance by the General Term of the City Court of Hew York of a judgment in favor of the plaintiff, entered upon the verdict of a jury. The nature of the action and the material facts are stated in the opinion.
    Hoadly, Lauterbach & Johnson (Herbert R. Limburger, of counsel), for appellant.
    Max D. Steuer and A. S. Levy, for respondent.
   Giegerich, J.

This action was brought by the infant plaintiff, through his father as his guardian ad litem, to recover damages claimed to have been sustained by the plaintiff while alighting from one of the defendant’s cable cars.

By answer the defendant interposed a general denial and averred that the injuries, if any, sustained by plaintiff were caused solely by his negligence.

When the accident happened, the plaintiff was twenty years of age, and resided with his father.

The jury rendered a verdict in his favor for $1,250, and the judgment entered thereon having been affirmed by the General Term of the City Court of Hew York, the defendant has taken this appeal. I

Upon the trial, the plaintiff’s counsel asked the court to charge “ that in considering what plaintiff has suffered they are to consider the loss of time and wages as testified to by the plaintiff; that one of the elements of damages is loss of wages pleaded and proved.” Whereupon the court charged the jury: “ Counsel has correctly stated that a proper element of damage to the plaintiff, although he be a minor, is his loss of wages, if you believe that he lost them as the result of the accident, provided, of course, that you believe, under the rules I have laid down to you, that he is entitled to any damage at all.” .

The exception noted by the defendant to such instruction forms-the basis of the only question presented for our consideration upon this appeal.

The father was entitled to plaintiff’s services and earnings during his minority, unless the latter was emancipated when the accident occurred. Shute v. Dorr, 5 Wend. 204; Stanley v. National Union Bank, 115 N. Y. 122, 134; Tiffany’s Persons and Dom. Rel., § 126.

The complaint failed to allege, nor was there any evidence whatever that plaintiff was emancipated. The mere allegation “ That the plaintiff has been since the happening of the accident unable to give his time and attention to his regular employment, and has been unable to do anything in consequence of the injuries which he sustained, thereby causing him to lose his wages and his regular income,” was not evidence of the matters so alleged. Drew v. Andrews, 8 Hun, 23; Tisdale v. D. & H. C. Co., 116 N. Y. 416; Holmes v. Jones, 121 id. 461; Quinn v. Neeson, 21 N. Y. Supp. 106.

The petition of the plaintiff for the appointment of his father as guardian ad litem herein, put in evidence by his counsel, does not, as erroneously assumed by the court below, contain any averment from which it might be inferred that he had been emancipated. The only allegation, pertaining to such proposition, is “that this deponent * * * is unable to perform any work and has been seriously injured and damaged in at least, as he believes, the sum of two thousand dollars.” This certainly does not show an emancipation, but is, at most, a statement that the plaintiff’s injuries are of such a character as to prevent the performance of any work.

The plaintiff insists, however, that his father would be estopped from maintaining an action against the defendant for the loss of the earnings in suit, because he, as guardian ad litem, verified the complaint in this action, which contains the averment respecting the plaintiff’s alleged inability to perform any service, or earn any wages, by reason of the injuries claimed to have been sustained, as above set forth in full.

It is well settled that an estoppel with respect to a material allegation in a pleading can only arise where the subsequent action is between the same parties, and the plaintiff is suing in the same right or capacity. Rathbone v. Hooney, 58 N. Y. 463; Landon v. Townshend, 112 id. 93; Collins v. Hydorn, 135 id. 320; First National Bank v. Shuler, 153 id. 163; Clason v. Stewart, 23 Misc. Rep. 177; Leggott v. Great Northern Ry. Co., L. R., 1 Q. B. Div. 599; 7 Am. & Eng. Ency. of Law, 3.

In Collins v. Hydorn, supra, O’Brien, J., speaking for the court, said (p. 324): “ the mere fact that the same persons, are litigants -in the two actions is not always sufficient to satisfy the rule of res adjudieata. The same person may in law be considered, another person, and consequently another party, by suing in another capacity. * * * The rule is that a former judgment concludes the party only in the character in which he was sued, and, therefore, a judgment for or against an executor, administrator, assignee or trustee as such presumptively does not preclude him, in a different cause of action affecting him personally from disputing the findings or judgment, though the same questions are involved.”

“ The rule about the estoppel,” said Quain, J"., in Leggott v. Great Northern Ry. Co., supra (p. 606), “ is very correctly, I think, laid down in the note to the Duchess of ¡Kingston’s case, 2 Sm. L. C. (7th ed.) 792. It is this: ‘It must be observed that a verdict against a man suing in one capacity will not estop him when he sues in another distinct capacity, and, in fact, is a different person in law.’ In other words, it is generally put in the books that the plaintiff must not be only the same person, but must be suing in the same right.”

Following these adjudications, it must result that this father, the guardian ad litem, would not be estopped from maintaining a separate action personally for the loss of the earnings of his son during the period in question, and hence, the trial justice erred in charging, as he did, that the jury might award damages for loss of wages.

The defendant insists that for the error so committed, the judgment should be reversed and a new trial granted, but as the value of such services clearly appears, viz., $208, we are inclined to adopt the suggestion of the plaintiff to sustain the judgment if it be reduced by that amount, provided he will stipulate within ten days after the entry of the order to deduct the above-mentioned sum, and, in that event, the judgment, as so modified, will be affirmed, without costs; otherwise, the judgment will be reversed and a new trial ordered, with costs to the appellant to abide the event.

Bbekman, P. J., and Gildersleeve, J., concur.

Judgment modified by reducing the amount thereof to the sum of $1,224.50, and as so modified, affirmed, without costs, upon the plaintiff’s written consent to such reduction being given. In default of such consent, judgment reversed and new trial ordered, with costs to appellant to abide event.  