Traver v. Eighth Avenue Railroad
New York Court of Appeals
Appeal from a judgment. This action was brought in the superior court of New York, on behalf of Amelia Traver, by A. Bull, her guardian, to recover damages of the, defendants for an injury alleged to have been caused by the carelessness of the defendants’ servants, while the plaintiff was a passenger on one of their cars.
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Appeal from a judgment. This action was brought in the superior court of New York, on behalf of Amelia Traver, by A. Bull, her guardian, to recover damages of the, defendants for an injury alleged to have been caused by the carelessness of the defendants’ servants, while the plaintiff was a passenger on one of their cars. After the injury was received, and before the commencement of this action, the plaintiff intermarried with one Collins, but in the summons and complaint in the action she was designated by her maiden name. The plaintiff was about eighteen years old at the time of the injury,…
1Opinion of the CourtGrover, J.
Commencing the action in the maiden name of the plaintiff, instead of that acquired by marriage, was a misnomer merely. There was no pretense but that the plaintiff was the proper person to sue, and the only one that could maintain an action for the injury sought to be redressed. Under the practice prior to the Code, misnomer of either party could only be plead in abatement of the action (2 Graham Pr., and cases cited). Neglecting to interpose such plea waived any advantage to the defendant therefrom. The mistake was amendable by the court. The misnomer was not ground of nonsuit upon the…
2Cases cited1 opinion
- Bank of Havana v. . MageeNew York Court of Appeals · 1859
3Cited by5 opinions
- Sultan of Turkey v. . TiryakianNew York Court of Appeals · 1915
- Hubner v. Metropolitan Street Railway Co.Appellate Division of the Supreme Court of the State of New York · 1902
- Farrington v. MuchmoreAppellate Division of the Supreme Court of the State of New York · 1900
- Newman v. ErnstThe Superior Court of New York City · 1890
- Stuber v. SchuartzNew York Marine Court · 1877