Bowen v. Phœnix Bridge Co.

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 com [24] menced 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.