25 Barb. 183 | N.Y. Sup. Ct. | 1857
The most material question in this case is, whether any right of action accrued to the plaintiffs
By our statute of distribution of assets, in cases of intestacy, (2 R. S. 96,) the next of kin are entitled to no share of the assets, if the intestate left children. They only take a moiety where there is a widow and no children, nor any legal representatives of them ; and children and next of kin are there mentioned and provided for, as separate and distinct classes of persons. In this act, on the contrary, children are not mentioned. It is the widow and next of kin, only, who are provided for. It is un
Let us first see whether any right of action accrued to these plaintiffs. The liability is created and the action given, by the first section of the act. (Sess. Laws of 1847, ch. 450.) What is it which constitutes the cause of action, according to this section ? First, there must be the death of a person, caused by a wrongful act, neglect or default. Second, the act, neglect or default, must be such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued. And “ then and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.” In the case before us, it is established by the verdict, that the deceased came to his death by the wrongful act, neglect or default of the defendants; and also, that the act, neglect or default, was such that the defendants became, and were, liable to the deceased, for damages in respect thereof. And the further fact is admitted, that they responded to the deceased in his lifetime, for such liability, and canceled his claim, by settlement and payment. When death ensued, therefore, the deceased had no subsisting cause of action; nor could he have maintained any action and recovered any damages, in respect of the act or the injury, if death had not ensued. It seems to me clear, therefore, that this case does not fall within the language or scope of the act. The plain reading and intention of the section seems to me to be this: If the defendants would have been liable, to the injured party, if death had not ensued, but did not become liable, or did- not make satisfaction, by reason of death' ensuing, they shall still be liable to an action, notwithstanding the death. The condition is, if they would have been liable if death had not ensued; and not if they became liable, and actually made compensation before death ensued. In this view of the statute, the right of action in the plaintiffs is made to depend, not only upon the character of the act from which death ensued, but upon the condition of his claim at the time
The plaintiffs’ position is, that the action is given to them to recover the damages which other persons have sustained, by reason of the death, and not those which the injured person sustained. That the right of action depends wholly upon the character of the act, and not at all upon the condition of the claim of the
The injury resulting from the death, to the class of persons intended to be benefited by the act, might be precisely the same, where compensation had, as where it had not, been made. But the action is confined exclusively to a ease where the injured person would have been entitled to maintain an action, and recover damages, if death had not ensued, and where the . defendants would have been liable, if death had not ensued, and is not founded wholly upon the fact that a death has been caused by an act of a particular character, from which injury and damage have resulted. Here the injured person would not have .been entitled to maintain an action, at any time after settlement, to recover damages. That act, accompanied by payment, extinguished both the right and the liability, and for every legal purpose the act, neglect or default, was as though it had never occurred. There was no liability to continue, whether death ensued or not. The object of the statute, as I understand it, was to continue the cause of action which the person injured had, and which he had not enforced, but might have enforced, if death had not ensued, for the benefit of the widow and next of kin, to enable them to obtain their damages, resulting from the same primary cause, and not to create an entirely new and additional right of action. The plaintiffs’ construction would give two actions for a single wrongful act, and frequently a double compensation for the injury flowing from it, to the same individuals. They might receive the damages recovered by the person injured, in the distribution of assets, and their own damages, recovered in the action brought for their benefit. This is contrary to the general policy of the law, and the act should not receive such a construction, unless that was clearly the intention of the legislature. I do not propose to remark upon
In my opinion, the statute was not intended to give any right of action in a case like this. It is not within the letter of the condition, nor, as I think, within its spirit and meaning. Having arrived at this conclusion, upon this question, it is unnecessary to examine the other points discussed upon the argument.
The charge, and the refusal, were both erroneous, and a new trial should be granted, with costs to abide the event.
Johnson, Welles and T. R. Strong, Justices.]