King v. Mail & Express Co.

Clarke, J.: This, is an administrator’s action under section 1902 et seq. of the Ce de of Civil Procedure to recover damages for the' death of plain-. .tiff’s intestate as the result of defendant’s negligence. Defendant demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action. The complaint alleges: “ That on December 6th, 1.902, plaintiff’s intestate, Ellen O’Hare, in the exercise of due care and precaution, was lawfully crossing Tenth Avenue at the northeast corner of 52d street, public highways in the Borough of Manhattan,-from the east side of said Tenth Avenue, for the purpose of boarding a car going north on .said Tenth Avenue. That while crossing said'avenue as aforesaid, one of the wagons drawn by horses so owned, used, hired [91] or employed by said defendant, in its said business, then being driven by one of the agents and servants of said defendant at a rapid and unlawful rate of speed, and recklessly, negligently and carelessly ran into the said plaintiff, knocking her down and inflicting upon her serious, painful and internal injuries whereby and by reason whereof and as the direct cause thereof the said intestate Ellen O’Hare, after • lingering in great pain, died on the 11th day of April, 1904.” There Were appropriate allegations as to the incorporation of the defendant, and its business, as to its negligence, and freedom of contributory negligence of “ the said intestate,” Ellen O’Hare, as to the next of kin, the due appointment of the administrator and the damages claimed. The defect claimed is that the complaint stated that the wagon “ ran into the said plaintiff * * * whereby * * * the said' intestate Ellen O’Hare, after lingering in great pain, died on the 11th day of April, 1904.” It is, of course, perfectly obvious that a word has inadvertently been omitted. What the allegation was intend,ed to be was, “ ran into the said plaintiff’s intestate,” whereby and so forth. The argument of the respondent that the complaint is susceptible of the interpretation that the wagon ran into the plaintiff, the administrator, whereby “ and as the direct cause thereof ” the intestate died is not saved from frivolity by reason of its ingenuity. If it be necessary to point out the obvious, the complaint sets forth that “ plaintiff’s intestate Ellen O’Hare . * * * was ' * * * crossing’Ten tli Avenue; "* * * that while so crossing, one of the defendant’s wagons ran into said plaintiff, knocking her down.” Here the plaintiff is Martin J. King,- as administrator; and clearly “ her ” does fnot apply to him — “ and inflicting upon her serious, painful and internal injuries, whereby and by reason whereof, and as the direct cause thereof the said intestate Ellen O’Hare * * * died.” What possible doubt can there be of the meaning of this paragraph taken as a whole ? “ The court may upon the trial or at any other stage of the action * * * in furtherance of justice * * * amend any * * * pleading, * * * by correcting a mistake * * * in a,ny other respect, * * *. And in every stage of the action the court must disregard an error or defect in the pleadings or other proceedings which does not affect the substantial rights of the adverse party. * * * .” (Code Civ. Proc. § 723.) Such an omission, as in [92] the case at bat, amendable at any time upon mere suggestion to the court, did not make the complaint demurrable. It was a clerical error that could not by any possibility have misled the defendant and so should, have been disregarded; In Kenney v. N. Y. C. & H. R. R. R. Co. (49 Hun, 535) the action was by an administratrix of a decedent, who left a. widow, to -recover damages. .The complaint alleged “ defendant left him surviving his widow.” Demurrer was Overruled, the court saying: “ It is very evident that the words ‘ defendant left him surviving his widow ’. was a mere clerical error either in drawing or copying the complaint, and it is so apparent that the word ‘defendant’ instead of ‘decedent’ was in that manner inserted that it -may, we think, be treated as if the latter had been the word used.” There is no substance in the criticism- of the complaint, and the -judgment should bo reversed, with costs, and demurrer overruled, with costs, with leave to- defendant- to withdraw the demurrer and answer over within twenty days on payment of such costs!' O’Brien, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred. Judgment reversed* with costs, and demurrer overruled, with costs, .with leave to, defendant to withdraw demurrer and to ansymr on payment of costs in this court, and in the court below... Order filed.