160 N.Y.S. 172 | N.Y. App. Div. | 1916
This action is in form to recover damages for fraud, and arises out of the following facts: It is alleged that prior to the bringing of this action, Charles Rice, plaintiff’s son, met his death under circumstances rendering the . defendant liable for negligently causing the same. The plaintiff, father of the intestate, was his sole next of kin. Following the death of
The defendant demurs upon three grounds:
First. That the plaintiff has not the legal capacity to sue.
Second. That there is defect of parties plaintiff.
Third. That the complaint does not state facts sufficient to constitute a cause of action.
Briefly summarized, the position of the defendant is that by sections 1902, 1903, 1904 and 1905 of the Code of Civil Procedure the Legislature has conferred the right of action for negligently causing death upon the administrator, as distinguished from the next of kin, and that, therefore, only an administrator is entitled to bring action for any damages growing out of negligence causing death.
There is no doubt that the Legislature has conferred the right of action in negligence upon an executor or administrator, and that an executor or administrator alone can prosecute such an action in negligence.
The legal status of the next of kin as affected by these sections has been frequently discussed by the courts, and it seems to be well settled that although the right of action is vested in the administrator, yet by reason of the fact that such action is for the benefit of the next of kin, each of the next of kin becomes: vested with a property right in such a cause of action, and a' right that is descendible and transferable. (Matter of Meekin v. B. H. R. R. Co., 164 N. Y. 145; Quin v. Moore, 15 id. 432.)
In line with such conception of the rights of the next of kin under this statute are those holdings which determine that a release from the next of kin bars an action by the adminis. trator. (Doyle v. N. Y., O. & W. R. R. Co., 66 App. Div. 398.)
The demurrer conceding the truth of the allegations of the complaint, we must assume that Charles Rice met his death
I recommend an affirmance, with costs, and the usual permission to plead over within twenty days upon payment of same.
All concurred.
Interlocutory judgment affirmed, with costs, with leave to the defendant to plead over within twenty days upon payment of the costs of the demurrer and of this appeal.