9 N.Y.S. 89 | N.Y. Sup. Ct. | 1890
The Code of Civil Procedure, § 1902, authorizes this action in case the defendant would have been liable to an action in favor of the decedent if death had not ensued. Section 1899 shows that the defendant is liable to this action, although he might also be criminally prosecuted. Whether the proof, therefore, would justify a recovery, would depend upon whether the deceased could have recovered against the defendant if death had not ensued. The learned justice who tried the cause charged that the plaintiff could