#### The Gatti-McQuade Company, Appellant, *v.*Virginia Flynn, Administratrix of the Estate of Patrick H. Keahon, Deceased, Respondent.

(Supreme Court, Appellate Term,' First Department,

February, 1913.)

Pleading — complaint in action for negligence — demurrer on ground of defect of parties defendant — parties.

Where the complaint, in an action for the negligence of a driver employed ‘by defendant in her capacity as administratrix and while carrying on the business of her decedent, fails to allege any cause of action against defendant in her representative capacity but does set forth a good cause of action against her individually, a demurrer to the complaint on the ground of a defect of parties defendant should have been overruled; and a judgment of the Municipal Court of the city of New York, dismissing the complaint upon sustaining the demurrer, will be reversed and the demurrer overruled, with leave to defendant to answer on payment of costs within six days after service of a copy of the order of reversal, with notice of entry thereof.

Page, J., dissents.

*431Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, first district, dismissing the complaint for failure to file an ■ amended complaint after a demurrer to the same had been sustained.

Smith and Bowman (Harold H. Bowman, of counsel), for appellant.

Michael J. Scanlon, for respondent.

Lehman, J.

Th'e complaint in this action is based upon the alleged neglect of a driver employed by the defendant in her capacity as administratrix of one Patrick H. Keahon and while carrying on the business of the decedent. The complaint also contains allegations as to the death of Patrick H. Keahon and the granting of letters of administration. It demands no judgment against the estate of decedent, but only a money judgment against the defendant. To this the defendant has interposed a demurrer on two grounds: (1) That there is defect of parties defendants in that Virginia Flynn individually is a necessary party defendant; (2) that the said complaint does not state facts sufficient to constitute a cause of action. There is, of course, no doubt but that an administratrix has no right to bind "the estate of a decedent by continuing to carry on the business previously conducted by the decedent, and an administratrix committing a tort, either personally or by an agent, is liable for the tort in her personal capacity, and not in her representative capacity. The complaint, therefore, fails to set forth any cause of action against the defendant in her representative capacity, but does set fprth a good cause of action against the defendant personally. The demurrer must, therefore, be sustained if the defendant is sued in a representative capacity, and must be overruled if the defendant is sued in her individual capacity. The defendant is named as “ Virginia Flynn, Administratrix of the estate of Patrick H. Keahon, deceased,” and the plaintiff claims that, since the *432word *“*as ” is omitted, the words following the name must be construed as a mere *descriptio*personae, and not as a description of the capacity in which she is sued. It has been held that: “ The omission of the word *‘*as ’ after the name of a party to an action determines that the action is brought in an individual and not in a representative capacity, and this irrespective of the words which follow the name, the rule being that whatever words follow, in the absence of the word ( as ’ are words *descriptio*personae United Press v. Abell Co., 73 App. Div. 240. This rule is, however, only a general rule of construction, and, like other rules of construction, must give way to any clearly expressed intent. “ But it has been held, on the other hand, that though there be nought in the title of the process or the complaint to give a representative character to the plaintiff, that the frame, and averments and scope of the complaint may be such, as to affix to him such character and standing in the litigation.” Beers v. Shannon, 73 N. Y. 292. Accordingly, it has been held that, where a plaintiff sues upon a cause of action which could only accrue in his representative capacity, a judgment must be sustained in his favor although the summons and complaint omit the significant word *“*as ” in the description of the plaintiff.. To the same effect see also the head-note of Stilwell v. Carpenter, 62 N. Y. 639, reported in full in 2 Abb. N. C. 238. These cases and others of a like nature are not, however, authority for the view that the omission of the word *“*as ” is not significant of the character in which a party sues or is sued, and that the character of the suit must be determined solely from the averments of the pleadings. The proper construction of the authority of these cases is laid down for us by the Court of Appeals in First National Bank v. Shuler, 153 N. Y. 163, 172. *“*The cases mainly are of two classes, those where the cause of action was upon a right accruing to the plaintiff or existing against a defendant in a representative character, which was imperfectly expressed in the title of the action, and cases where there was an unnecessary addition of a representative title to the name of the party, when in fact the cause of action was upon an individual right of obligation. *In these cases it*
      *433
      *has heen held that the title and pleadings may he considered together to ascertain the true nature of the*action> and the action will be treated as an individual or representative one, as disclosed upon an inspection of the whole record.” (Italics are mine.)

In other words/ it is the true nature of the action, whether individual or representative, as determined from an inspection of the entire record, which governs in spite of a misdescription in the title of the action. In this case, however, the complaint sets forth, according to defendant’s own claim, an individual action only; the relief demanded is purely individual, and there is no misdescription in the title of the action, but merely a *descriptio personae*which, like all such descriptions, is immaterial where the party is named by his own name. In such a case, where there is no possible ground for holding that the complaint sets forth an action in a representative capacity, we cannot, I believe, hold that the defendant has been summoned into court in a representative capacity alone, when she is not named in a representative capacity. See also Leonard v. Pierce, 182 N. Y. 431.

It follows that the demurrer should be overruled, because there is no defect of parties, since the defendant is in court in her individual capacity, and the complaint sets forth a good cause of action against her.

The judgment appealed from should be reversed and a new trial ordered with costs to appellant, and the demurrer overruled with five dollars costs, with leave to defendant to answer upon payment of costs in this court and in the court below within six days after service of a copy of the order entered herewith with notice of entry of said order in the Municipal Court.

Seabttey, J., concurring; Page, J., dissenting.

Judgment reversed and new trial ordered, with costs to appellant, and demurrer overruled.