(dissenting):
In this case, unlike the Johnson case, no new parties are added. The only amendment is that of striking out from the title of the summons and complaint the words “ As Administratrix of the Goods, Chattels and Credits of James Bowen, deceased,” and conforming the complaint so as to show that the action is prosecuted by the plaintiff individually and not as administratrix.
I think it clear that the Special Term had authority to grant the amendment. (Boyd v. U. S. Mortgage & Trust Co., 187 N. Y. 262.) The case of Doyle v. Carney (190 N. Y. 386) does not, as it seems to me, conflict with the Boyd case. In that case the plaintiff, as administrator of the estate of his daughter, sought to recover the value of services rendered by her to the defendant’s testatrix. It appeared upon the trial that the daughter was a minor at the time the services were rendered, and the objection was then made that the plaintiff could not maintain the action in his representative capacity as the services belonged to him personally. Thereupon the plaintiff was allowed to amend his complaint to conform to the proof and the judgment was entered in his favor individually and as administrator for the amount of the verdict, and it was held in the Court of Appeals that such an amendment was unauthorized upon the trial, but it was not held that the Special Term would not have had the power to allow the amendment upon a proper application seasonably made therefor.
I think the order should be affirmed.
Williams, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.