2 N.Y.S. 512 | N.Y. Sup. Ct. | 1888
The action was brought to recover for the benefit of those entitled to them occasioned by the death of Alexander Kenney, the plaintiff’s intestate, whose death is alleged to have been caused by the negligence of the defendant. The complaint alleges the negligence "of "the defendant, the death of Kenney as the consequence, and the issue to the plaintiff of letters of administration; also that the defendant left him surviving his widow, Margaret Kenney. There is in the complaint no further allegation that the decedent left him surviving a wife or next of kin. Nor is it alleged that any damages were suffered by any persons by such negligence or death, but judgment is demanded for a specific sum of money. The objection to the complaint was taken by demurrer upon the ground that it failed to state facts sufficient to constitute a cause of action. The statute gives a right of action to the administrator of a decedent who has left surviving him a wife or next of kin to recover damages for a wrongful act, neglect, or default by which his death was caused, against a party who would have been liable to him if death had not ensued, and the damages in such case recovered are exclusively for the benefit of the decedent’s widow and next of kin. Code Civil Proc. §§ 1902, 1903. It was essential to the cause of action to represent by allegation in the complaint that the intestate left him surviving some person or persons who would be entitled to the benefit of the recovery if one should be had. If, therefore, the allegation that he left a wife or next of kin w'as wanting, the demurrer was well taken. It is very evident that the words “defendant left him surviving his widow” was a mere clerical error either in drawing or copying the complaint. And it is so apparent that the word “defendant” instead of “decedent” was in that manner inserted, that it may, we think, be treated as if the latter had been the word used. It is impossible to apply the phrase to the relation of the defendant. This clerical error could not have misled that party, and should be disregarded. Id. § 723; Roussel v. Insurance Co., 9 Jones & S. 279.
The purpose of the action is to recover damages for the benefit of the decedent’s widow. The question arises whether any allegation that damages had been sustained, or that she had suffered damages by the negligence of the defendant, or by reason of the death of her husband so occasioned, was essential to support the complaint. It is said that the recovery depends upon the
Barker, P. J., and Haight and Dwight, JJ., concur.