48 N.Y.S. 940 | N.Y. App. Div. | 1897
Lead Opinion
This action was originally brought by Edward M. Mundt, as administrator, to recover damages under the statute for the death of his intestate, alleged to have been caused by the negligence or fault
The decision of the question involved in this case does not depend solely upon the construction to be given to the words “next of bin,” as they are used in section 1903 of the Code of Civil Procedure. By section 1902 of that Code the right to maintain an action to recover damages for a wrongful act, neglect or default, occasioning the death of a person under the circumstances mentioned in that section, is given to the executor or administrator of the deceased, and no one else owns that cause of action. No person as next of kin has any standing in court. It is purely a cause of action and right to sue conferred upon a representative, and it never has been anything other than that. Section 1903 of the Code provides that the damages recovered in such an action are exclusively for the benefit of the decedent’s husband or wife and next of kin, and when they are collected they must be distributed by the plaintiff as if they were unbequeathed assets left in his hands after the payment, of all debts and expenses of administration. This section has been construed to mean that the cause of action given by it is not general assets of the intestate, is not subject to the payment of debts or the ordinary rules applicable to the settlement or administration of the estates of deceased persons. (Stuber v. McEntee, 142 N. Y. 200.) But the amount of a recovery is, nevertheless, something which goes to an executor or administrator as such, and is to be disposed of by him as such, but only in the particular way pointed out by the statute. In a few words, the cause of action is created by the statute, and by that alone. It never existed before the statute of
Williams and Ingraham, JJ., concurred; Van Brunt, P. J., and O’Brien, J., dissented.
Dissenting Opinion
(dissenting):
The action was originally brought by Edward M. Mundt, as administrator, under section 1902 of the Code of Civil Procedure, to recover damages for the alleged negligence of the defendant
Upon the trial, after the introduction of evidence of the letters of administration granted to the former and present plaintiffs, and on the admission of plaintiff’s counsel as to the death of Edward M. Mundt, the defendant’s counsel again moved for a dismissal of the complaint, which was granted; and pursuant to the order entered thereon the judgment appealed from was entered. Before the entry of judgment the defendant moved to have the costs charged against the plaintiff personally, which was granted, and from the order so entered an appeal is also taken.
Upon the main question, as to whether, upon the death of the father, Edward M. Mundt, this action abated, we have to aid us the well-reasoned opinion of the learned trial judge, and the principles to be applied to the determination of such a question laid down in the leading case of Hegerich v. Keddie (99 N. Y. 258). That action was brought by the plaintiff, as administratrix, to recover damages for the death of her intestate, which the complaint alleged was caused by the negligence of the defendant’s testator. The defendant demurred, claiming that the cause of action did not survive the death of the wrongdoer. It was therein held (head note) that “ the cause of action given by the statute (Chap. 450, Laws of 1847; Code of Civ. Pro., § 1902) to the representatives of a decedent, whose death was caused by the negligence óf another, abates upon the death of the wrong-doer, and an action cannot be maintained
Considering the cause of action here, based as it is upon the defendant’s wrongful act, it clearly sounds in tort, and we think the conclusion is equally evident that it does not afiect the property rights of those in whose favor the action is given. The latter are entitled to receive the pecuniary damage suffered by the next of kin for a wrongful act. Such cause of action is purely the creature of statute, and for the manner and extent of its enforcement we must look in each case to the particular statute which creates it. The Code provision permitting this action requires it to be brought in the names of the personal representatives of the deceased ; but it is for the benefit of the husband, or Avidow, or next of kin, and not tile estate of the deceased to recover damages for the pecuniary injury suffered by them and caused by the wrongful act of another. By the Revised Statutes, it is only for wrongs done to the “ property, rights or interests ” of another that an action will survive as against the personal representatives of a deceased wrongdoer (2 R. S. 447, § 1); and as to what is meant by “ property rights or interests,” we have the definition which has received the sanction of the Court of Appeals, given by Judge Rapallo, in Cregin v. Brooklyn Crosstown R. R. Co. (75 N. Y. 194), that “ the rights and interests for tortious injuries to which this statute preserves the right of action have frequently been considered, and it is generally conceded that they must be pecuniary rights or interests, by injuries to which the estate of the deceased is diminished.”
When the. cause of action here arose, the father, as the next of kin, was entitled to the damages recoverable, though the action in form was brought by him as the representative of the deceased.
We do not think, however, that further discussion is necessary, for the logical deduction to be drawn from the able discussion of the changes effected by statute in the rule of the common law is, that it is only such actions in tort as create property rights that can survive the death of either party. And the authority of that case is enforced by two later decisions. In Brackett v. Griswold (103
Although the precise question here presented was not involved in the case of Hegerich v. Keddie (supra), we must regard these later utterances of the Court of Appeals as enforcing and supporting the discussion of the principles therein had upon the survivability of actions given by statute. And we might well rest our conclusion upon the reasoning of the learned trial judge, enforced as it is by these decisions of the Court of Appeals to which we have called attention, and which support his view that, upon the death of the sole person beneficially interested in the recovery under the statute, an action for tort, not involving an injury to property rights, abated.
In addition to the judgment, we have exámined the orders appealed from, and do not think that we should interfere with the disposition made by the judge at Special Term. We have concluded that the judgment and orders should be in all respects affirmed, with costs.
Van Brunt, P. J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.