102 N.Y.S. 1066 | N.Y. App. Div. | 1907
Lead Opinion
This is a statutory action to recover for the "death of John H. Ward, alleged to have been caused by the negligence of the defendant. The original complaint alleges that the decedent was in the employ of the defendant and was killed on the 29tli day of July, 1903, while engaged in the construction of a power house at Fifty-ninth street and Eleventh avenue in the borough of Manhattan. The plaintiff alleged that the defendant was a corporation ; that the decedent was in its employ in the due performance of his duties at the time of receiving the injuries which resulted in his death, and that the notice required by the Employers’ Liability Act (Laws of 1902, chap. 600) was duly served. The defendant admitted its incorporation and the receipt of the notice, but denied all of the other material allegations of the complaint, and alleged, upon information and belief, that the in juries sustained by the decedent were caused by his own negligence or by the negligence of his fellow-servants, “ or by the negligence of some third person or persons over whom-this defendant had no authority or control,” and that “all the risks and dangers connected with the situation ” were open, obvious and apparent, and were known to and assumed by the decedent. The plaintiff thereafter discovered that the corporate name of decedent’s employer was incorrectly specified in the title of the action and moved to amend. The moving papers show that the name of the corporation by which the decedent was employed and which was intended to be sued herein, was the Terry cfs Tenoh Company, and not the Terry & Tench Construction Company, as originally designated; that the
The motion was granted without requiring the payment of costs. It does not appear that the defendant gave any erroneous information to the plaintiff prior to the commencement of the action which led to the mistake, and, therefore, it cannot be said to have been at fault. If properly sued originally it might not have defended. Under the order, it will be obliged to plead over, and will lose the benefit of all intermediate steps and proceedings. Therefore, the motion should have been granted, upon payment of ten dollars costs of the motion and statutory costs of the action to that date.
The order should, therefore, be modified, without costs of the appeal, by providing that the motion is granted upon payment of ten dollars costs of the motion and the statutory costs of the action to the date the motion was made.
Patterson, P. J., and Ingraham, J., concurred; Scott and Clarke, JJ., dissented.
Dissenting Opinion
In my opinion the order appealed from is wholly unauthorized. We have not here a case wherein the plaintiff made a mistake in the name of the persons intended to be sued. Her mistake was as to the identity of the person who had wronged her. She believed that her husband, at the time of his death, was in the employ of the Terry & Tench Construction Company, and, therefore, she sued that company. She now finds that her husband was employed by an entirely different corporation, to wit, the Terry & Tench Company, a separate and distinct entity, and that her claim, if she has one, is against the latter. The purpose of the order appealed from is to substitute the Terry & Tench Company as defendant in place of the corporation already sued, in the hope that by this means the plaintiff will avoid the plea of the Statute of Limitations which
I am quite unable to distinguish this case from New York State Monitor Milk Pan Assn. v. Remington Agricultural Works (89 N. Y. 22) and Licausi v. Ashworth (78 App. Div. 486), in both of which an order, similar to that here considered, was declared to be unauthorized. It is said that it is evident that plaintiff intended to sue the Terry & Tench Company, because it was her clear intention to sue the company for whom her husband worked. That is true, but it is also trué that it was equally, apparent that the plaintiffs in each of' the cases cited above intended to sue the persons against whom they had claims, and that they fell into precisely the same error that (this plaintiff fell into, in mistaking the identity of the person against whom they had such claims. In short, we have here,. not the case of a misnomer but a deliberate intention to sue the wrong defendant under the mistaken belief that it. was the person from .whom plaintiff had suffered damage.
The order should be reversed, with costs, and the motion denied.
Clarke, J., concurred.
Order modified as directed in opinion, without costs of appeal. Settle order on notice. ■