142 N.Y. 200 | NY | 1894
The plaintiffs' intestate, a young man about eighteen years old, was killed May 12, 1890, while working in a hole or trench about thirteen feet deep and four or five feet square, by the caving in of the earth and stone which formed the wall of the excavation. The defendant is a plumber and the deceased was his apprentice. The plaintiffs sought to maintain this action upon the allegation that the death was the result of negligence on the part of the defendant in not properly shoring up or supporting the walls of the excavation where the deceased was at work. The trial resulted in a non-suit. It was shown in behalf of the defendant that *203 after the death he paid to one of the plaintiffs in this action, a brother-in-law of the young man, the sum of $400, which was used by the family to pay the funeral expenses and the cost of a lot in the cemetery and to purchase a gravestone to mark the burial place. The plaintiff who received the money was not then, but subsequently was appointed, one of the administrators of the deceased. He gave a receipt for the money to the defendant, in which it was stated that the payment was for all expenses caused by the untimely death of the young man, and "further, that I shall have no further claim whatsoever against Mr. McEntee." In deciding the motion for a non-suit, the learned trial judge assumed that a case of negligence on the part of the defendant, in omitting to shore up or support the excavation, was shown, but granted the motion upon two grounds: (1) That the deceased was guilty of contributory negligence. (2) That the receipt for the payment of the $400 was a settlement of the claim and a bar to the action.
Actions for damages by reason of injuries resulting in death were unknown to the common law and are founded wholly upon the statute. The cause of action is no part of the assets of the estate of the deceased. The statutory liability has no existence in his lifetime and accrues only by reason of his death. It is not subject to the payment of the debts of the deceased nor to the ordinary rules applicable to the settlement and administration of the estates of deceased persons. (Code, §§ 1902-1905.) The damages are not general assets of an estate of a deceased person in the hands of the executor or administrator and subject to their control, but are exclusively for the benefit of the decedent's husband or wife and next of kin. The claim before suit cannot be barred or released except by some person who has authority to bring the action at the time and who in a legal sense represents the right of action. When the plaintiff Krause gave the receipt and received the money he was in no such position and had no authority to bind the next of kin of the deceased by a settlement or release. The cases cited by the learned trial judge in support of his view *204 do not, we think, control the question. It is only necessary to refer to the two leading cases in this state. (Rattoon v.Overacker, 8 Johns. 126; Priest v. Watkins, 2 Hill, 225.) These cases hold that when a person assumes to collect the assets or credits belonging to the estate of a deceased person, and who subsequently is appointed administrator of the estate, and in that capacity brings an action upon the claim so collected, the prior payment made to him before his appointment is a defense to the party against whom the claim existed and who made the payment. For the purpose of protecting parties making payment in good faith to the widow or other person without authority to collect the assets at the time, the letters when subsequently issued to them, are deemed to relate back so as to legalize such payments. But these cases do not hold that a stranger may compromise a claim due to an estate on receiving a part only of what is due and thereby estop himself in a subsequent suit, in a representative capacity, from collecting the residue. If there is any such rule of law in the administration of the estates of deceased persons it has no application in an action like this for the recovery of unliquidated damages under a special statute by the next of kin resulting from a negligent or wrongful act, causing the death of their intestate. We have no doubt that the defendant was entitled to prove the fact of payment and its application to the expenses of the funeral and burial of the deceased and to be credited with the same by the jury in making its estimate of the damages which the plaintiff should recover, if any. In this way the principle decided in the cases above referred to is given full effect, but to hold that the receipt operated as an accord and satisfaction would be extending its operation in a manner to accomplish results that cannot be sustained by reason or authority.
If the defendant made the excavation for the deceased to perform his work in, or if, having seen its condition, he directed him to work in it, then the servant was not as matter of law guilty of contributory negligence. It was a question for the jury within the doctrine of Kranz v. L.I.R. Co. *205
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It will be seen that the fact that the defendant directed the deceased to work in an excavation which he had caused to be made is sufficiently alleged. The defendant has put the allegation in issue only by the use of the following language in the answer:
"First. This defendant denies that he directed William Stuber to go down and do certain work in an excavation to which this defendant had caused to be made in West 116th street in the city of New York, between Seventh and Eighth avenues in said city, about four hundred feet or thereabouts west of Eighth avenue."
This is not such a denial as is authorized by the Code. It is a species of negative pregnant. (Wall v. Buffalo Water WorksCo.,
The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.