181 Misc. 793 | N.Y. Sup. Ct. | 1944
The complaint alleges that Eugene Bozewski, who brings this action as administrator of his deceased wife’s estate,
This motion is brought to strike out the second affirmative defense set up in defendant’s answer which reads as follows: “ That the cause of action set forth in the complaint herein is predicated upon the negligence, carelessness and imprudence of the plaintiff’s intestate’s husband, Eugene Rozewski, who is the next of kin of plaintiff’s intestate and who will profit by any recovery had in this action through his own negligence, carelessness and imprudence and that any recovery herein is contrary to the public policy of the State of New York.”
The plaintiff in the case at bar claims a right of action under section 130 of the Decedent Estate Law. Our courts have declared consistently that the statute in question provides a new and distinct action from the common-law action on account of personal injuries based on negligence, and that the action may be brought only where a natural person or a corporation would have been hable to an action in favor of the decedent by reason thereof if death had not ensued. (McKay v. Syracuse R. T. Ry. Co., 208 N. Y. 359; Kelliher v. N. Y. C. & H. R. R. R. Co., 212 N. Y. 207; Clough v. Gardiner, 111 Misc. 244.) In the McKay case (supra) the plaintiff brought an action for the negligent killing of his wife, and the question was whether the plaintiff, being the sole beneficiary (as in the instant case), could recover when he himself was guilty of negligence which contributed to the accident in which the decedent met her death. Referring to section 1902 of the Code of Civil Procedure from which the provisions of section 130 of the Decedent Estate Law were taken, the court said (p. 363): “ There can be no doubt that the plaintiff’s negligence would not have defeated a recovery by the wife if she had lived. Her cause of action abated upon her death, but the legislature has substituted a new action and has specified the condition upon which it may be maintained, i. e.,
There are many decisions holding that the contributory negligence of the husband is not a defense in an action brought by him for death of his wife caused by negligence of the defendant. (McKay v. Syracuse R. T. Ry. Co., supra; Wallace v. D’Aprile, 221 App. Div. 402; Jenks v. Veeder Contracting Co., 177 Misc. 240, mod. 264 App. Div. 979, affd. 290 N. Y. 810.) It is argued by the defendant here that plaintiff should not be permitted to recover because he would be the sole beneficiary of any amount obtained on a judgment in his favor. However, in Braun v. Buffalo General El. Co. (213 N. Y. 655), it was held reversible error for the court to charge that the law “ ‘ does not authorize a recovery where the sole beneficiary is equally guilty with the defendant in bringing about the death for which damages are sought to be recovered.’ ” (Italics mine.) Assuming that in the instant case the decedent had been survived by the plaintiff and children, the fact that he would share in the recovery would not be a bar to the action. (Lo Galbo v. Lo Galbo, 246 N. Y. S. 565.)
The novel question presented by this motion results from the fact that the plaintiff not only would be the sole beneficiary of any recovery obtained, but the accident allegedly occurred wholly because of his own negligence. No decisions in this State have been submitted by counsel nor has my own research revealed any cases involving the same situation. Defendant maintains that plaintiff should not be permitted to profit by his own wrong. In Swartzlander v. Swartzlander (217 N. Y. S. 467) the court said: “ The doctrine that a person cannot be advantaged by his own wrong is applicable only to willful wrongs as distinguished from carelessness. [Citing McKay v. Syracuse R. T. Ry. Co., supra, and other cases.] ”
The Legislature, by section 130 of the Decedent Estate Law, has provided that five elements must exist to warrant a cause of action. They are: (1) The action must be brought by the administrator or executor of the decedent. (2) The decedent must be survived by a spouse or next of kin. (3) Decedent’s death must have resulted from a wrongful act, neglect or default on the part of some person or corporation. (4) The decedent must have had a right of action against the defendant had death not ensued, and (5) the action must be commenced within two years after decedent’s death. All of these requirements are met in the instant case. Furthermore, plaintiff brings this action as administrator, as required under the statute, and not individually. Our courts hold that one suing in a representative capacity is, in contemplation of law, a distinct person and a stranger to any right as an individual. (Leonard v. Pierce, 182 N. Y. 431; Matter of Sullivan, 289 N. Y. 323, revg. 264 App. Div. 65, which revd. 177 Misc. 570.) If plaintiff’s wife had not died as a result of injuries sustained, she would have a right of action against her husband (Domestic Relations Law, § 57) and against the defendant, Stanley J. Rozewski. (Vehicle and Traffic Law, § 59.) The complaint alleges that the plaintiff himself was guilty of negligence (that is, the “ wrong ”) resulting in the accident. The fact that he could have no right individually to recover against the defendant for his own negligence does not eliminate his wrongful act. “ Unlawful the act remains, however shorn of a remedy ” (Schubert v. Schubert Wagon Co., 249 N. Y. 253, 257).
The Legislature, by subdivision 3 of section 167 of the Insurance Law, provided as follows: “ No policy or contract shall be deemed to insure against any liability of an insured because of death of or injuries to his or her spouse or because of injury to, or destruction of property of his or her spouse
Motion granted, without costs.
Let an order enter accordingly.