On appeal from the Supreme Court, Middlesex Circuit.
For the appellants, John E. Toolan.
For the respondent, McCarter & English.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. These actions were tried together. Both were for damages growing out of the same
happening alleged to have resulted from the negligent operation of a motor car by John Yuska in which Mathis Yuska received personal injuries and Steve Lesko was killed as was also John Yuska, the operator of the vehicle.
The summons and complaint in each case, as appears from a statement in appellants' brief "were served on December 8th, 1931, upon Anna Yuska, the mother of John Yuska, a person above the age of fourteen years, at her residence and usual place of abode * * *."
Answers were filed in each case containing under the title "objections in point of law," the following:
"Defendant reserves the right at or before the trial of this cause to move against the complaint in point of law on the ground that it sets forth no cause of action."
At the conclusion of the plaintiffs' case the attorney for the defendant moved a nonsuit, upon the ground, among others, "that there is no defendant here; there is no suit * * *. In other words, that the plaintiff does not state a cause of action against a defendant." Before ruling upon this motion the trial judge was requested by the attorney for the plaintiffs to permit an amendment to "the complaint so that we might add as a proper party the administrator of the estate."
At the time of the trial no letters testamentary or of intestacy had been issued upon the estate of John Yuska. The amendment applied for could not then have been made and the ...