168 F. 51 | 2d Cir. | 1909
The accident occurred in the state of New York, the statutes of which state provide that the executor or administrator ■of a decedent, who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect, or default by which the death was caused. The damages recovered do not constitute any part of the decedent’s estate. They are exclusively for the benefit of such husband or wife or next •of kin. Code Civ. Proc. N. Y. §§ 1902, 1903. There is a similar statute in New Jersey. The deceased was a resident of Newark, N. J., and plaintiff was appointed administrator by the surrogate’s court in that state. At the time of bringing suit he had not taken out ancillary letters in New York, and no statute of that state gives a foreign administrator, who has not received such an appointment, any right to sue in its courts. It is well settled that an administrator appointed in one state cannot as such maintain an action in another state, which has not either by the issue of ancillary letters or by some special provision of statute given him authority so to sue. Noonan v. Bradley, 9 Wall. 394, 19 L. Ed. 757; Dennick v. Central Railway Co., 103 U. S. 11, 26 L. Ed. 439. The objection was duly raised on the trial, and exception was reserved. The objection is fatal, and the judgment must be reversed. Fortunately this error will not deprive the plaintiff of any substantial rjght. It appears that subsequent to the trial he has taken out ancillary letters, and the Circuit Court has power to allow amendment which will enable him to prosecute the suit as such administrator. Van Doren v. Pennsylvania R. R., 93 Fed. 260, 35 C. C. A. 282; Hodges v. Kimball, 91 Fed. 845, 34 C. C. A. 103.
The judgment is reversed.