77 N.J.L. 175 | N.J. | 1908
The opinion of the court was delivered by
A judgment of nonsuit having been entered in favor of the Philadelphia and Reading Railway Company, a rule to show cause was allowed why it. should not be vacated. The rule permitted the taking of affidavits, from which it appears that the plaintiff had retained a member of the bar of the State of New Jersey, who brought suit in her name as administratrix of her husband, and that issue was joined on August 18th, 1906; that the case was noticed for trial at the following September term of the Hudson County Circuit Court, but was not tried; that it was not noticed for trial for
The declaration in this case shows that the suit was instituted to recover damages for the death of plaintiff’s intestate caused by an accident which happened in the State of Pennsylvania, which it is charged resulted from the negligent act of the defendant, but there is no averment in the declaration that there is any statute in that state which would entitle the plaintiff to recover, and no proof can be introduced to support an action for damages resulting from the death of the deceased through the negligence of the defendant, because in
Such an amendment was refused in a similar case in Lower v. Segal, 31 Vroom 99. In that case an action was instituted by a wife as administratrix, to recover damages for the death of her husband which occurred in the State of Pennsylvania, and she applied for leave to amend the summons and declaration in such manner that the action might appear to be one brought by the widow of deceased, instead of his personal representative, and it was there held by this court, Mr. Justice Magie writing the opinion, that the amendment would not continue the existing suit except in mere form, but would create and institute a new suit with a new question in a controversy between different parties. The determination in that case would be controlling in this, and if no nonsuit had been granted, and the plaintiff was now moving for the amendment necessary to state her cause of action in a form necessary for recovery, it would be refused.
In Fitzhenry v. The Consolidated Traction Co., 34 Vroom 142, the application was to amend the pleadings in a suit