| N.Y. App. Div. | Jan 15, 1930
On April 21, 1927, Edward Streeter, while engaged in his regular employment, suffered injuries which resulted in his death. These injuries were caused by the negligence of one not in the same employ, this defendant. Streeter left him surviving his widow and six children; all the children save one were under eighteen years of age. The mother and the five dependent children (Workmen’s Compensation Law, § 16, as amd. by Laws of 1923, chap. 566, and Laws of 1924, chap. 319)
The question is presented because the child over eighteen years of age, while of the next of kin, is not a dependent. (Matter of Zirpola v. Casselman, Inc., 237 N.Y. 367" court="NY" date_filed="1924-02-19" href="https://app.midpage.ai/document/claim-of-zirpola-v-t--e-casselman-inc-3588223?utm_source=webapp" opinion_id="3588223">237 N. Y. 367, 375.) The' defendant moved to dismiss the complaint upon the ground “ that the plaintiff herein is not a proper party plaintiff; * * * that the plaintiff could only prosecute this action after the appointment of an administrator of deceased; * * * that a cause of action for injuries resulting in death, prosecuted by an administrator against some one other than the employer, is for the benefit, not of the dependents, as defined by the Workmen’s Compensation Law, but of the next of kin, as defined by the Decedent Estate Law. * * *.” The court stated in its charge that the plaintiff “ seeks by this action to recover the damages which under the law the widow and these five dependent children could recover against the defendant, if it is found that the death of the husband and the father was due to the fault of this defendant.” Again it said: “ In this case the damages are the. pecuniary injuries in dollars which the widow and these five children suffered by the death of this father. * * * So the damages, * * * if you find for the plaintiff, is such a sum of money as in your judgment, arrived at
We think the carrier is the proper party plaintiff and that the case was properly submitted. Authority is given an executor or administrator to “ maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent’s death was caused * * *.” If the executor refuses, under certain conditions named, to bring such an action, a husband, wife or next of kin may “ have an administrator appointed for the purpose of prosecuting such action for their benefit.” (Decedent Estate Law, § 130, as added by Laws of 1920, chap. 919.) The damages awarded to the plaintiff are to be “ just compensation for the pecuniary injuries, resulting from the decedent’s death, to the person or persons, for whose benefit the action is brought ” (Decedent Estate Law, § 132, as added by Laws of 1920, chap. 919), and these damages “ are exclusively for the benefit of the decedent’s husband or wife, and next of kin ” and “ must be distributed by the plaintiff, or representative, as if they were unbequeathed assets, left in his hands, after the payment of all debts, and expenses of administration.” (Decedent Estate Law, § 133, as added by Laws of 1920, chap. 919.)
maintain the action, with the requirement added that all damages recovered must be distributed to those only who are entitled thereto. An administrator appointed to bring this action is not vested with the usual rights and authority of an administrator of the estate. He is a formal party only (Davis v. New York Central & H. R. R. R. Co., 233 N.Y. 242" court="NY" date_filed="1922-04-18" href="https://app.midpage.ai/document/davis-v-new-york-central--hudson-river-railroad-5480501?utm_source=webapp" opinion_id="5480501">233 N. Y. 242, 246), an agent or instrument authorized to act solely for others who are the real parties in interest. On the other hand, no cause of action, or right to maintain such action, is given to any other party or person. The husband, wife and next of kin, while the real parties in interest, are given only a right to participate in the damages awarded.
These sections of the Decedent Estate Law had stood a long time when section 29 of the Workmen’s Compensation Law was enacted. It provides: “If an employee entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employee, or in case of death, his dependents, shall, before any suit or any award under this chapter, elect whether to take compensation under this chapter or to pursue his remedy against such other.” His remedy
This construction will not unduly multiply actions, nor will it create confusion. The assignee carrier will recover for the pecuniary injuries only which those he represents have suffered. If there be next of kin who are not dependents, the right of action in their behalf is not impaired or taken away because a similar action is permitted to the assignee carrier on behalf of dependents who
The appellant chiefly urges as authority for its contention the Zirpola Case (supra). The appeal there was from a death benefits award made after a recovery in a third party action which the dependents had elected to pursue; the question was as to the proper application of the damages recovered. The sole next of kin were the father and mother. The recovery was for $2,500. The Industrial Board had found that the mother was a dependent, but the father was not; and the court held that the mother’s share of the recovery, $1,250, was the amount by which the liability for death benefits should be reduced. Many of the matters discussed in the opinion could not arise in an action brought by an assignee carrier; his action could not be maintained until after a compensation award had been made. The court discussed the opinion in the earlier Padula, Case (supra) and said that considerable of it was dictum. Then it stated its conclusions as to the effect of the statute, among other things saying: “ If dependents, electing to assign, are members of the class of next of kin * * *, but not all the members of that class, * * * the carrier * * * must prosecute through the administrator as the statutory trustee.” This is apparently in conflict with our views, but we think in later opinions the Court of Appeals has not maintained this proposition, which was not necessary to the determination of the matter before the court. Indeed the court, earlier in this opinion, had said: “ If dependents, electing to assign, are the only next of kin, the entire beneficial interest in the cause of action against the wrongdoer will pass by their assignment to the carrier, who may sue or compromise at will. (Travelers Ins. Co. v. Padula Co., supra.)” Thus the assigned cause of action with right to prosecute, in the condition there named, passed to the carrier. We can find nothing in the statute indicating any distinction, in respect to the right of the carrier to prosecute the cause of action assigned to it, which rests upon whether or not the dependents include all the next of kin. The opinion in the Padula Case (supra) has been referred to in a number of later decisions in the Court of Appeals. In Phoenix Indemnity Co. v. Staten Island R. T. R. Co. (251 N.Y. 127" court="NY" date_filed="1929-05-28" href="https://app.midpage.ai/document/phoenix-indemnity-co-v-staten-island-rapid-transit-railway-co-3620901?utm_source=webapp" opinion_id="3620901">251 N. Y. 127) the court said (at p. 135): “ Where the death of an employee covered
As we read the opinions of the Court of Appeals in the cases above cited we believe the construction of the statute as above stated is in harmony with the rulings of that court.
The judgment and order should be affirmed, with costs.
Hinman, Davis and Hasbroitck, JJ., concur; Hill, J., dissents and votes for reversal and dismissal of complaint.
Judgment and order affirmed, with costs.
Since amd. by Laws of 1929, chaps. 299, 303.— [Rep.
Since amd. by Laws of 1929, chap. 229.— [Rep.