There is no material difference between the facts of this case and those of the case of Brassell v. N.Y.C. H.R.R.R. Co. (84 N.Y. 241), in which it appears that the deceased there was killed by the same accident, and hence upon the authority of that case this judgment must be affirmed, unless the exception taken by the counsel for the defendant to proof by the plaintiff of the necessary funeral expenses of the deceased was well taken. Section 2 of chapter 450 of the Laws of 1847, as amended by chapter 78 of the Laws of 1870, provides that the amount to be recovered in every case like this shall be "for the exclusive benefit of the husband or widow and next of kin" of the deceased person, and shall be distributed to the "husband or widow and next of kin" in the proportions provided by law in relation to the distribution of the personal property of persons dying intestate; and that the jury may give such damages as they shall deem a fair and just compensation, not exceeding $5,000, with reference to the pecuniary injuries resulting from the death to the husband or widow and next of kin of the deceased person. Under a similar statute in England it has been held that funeral expenses cannot be recovered. (Dalton v. South-eastern Ry.Co., 4 C.B. [N.S.] 296; Boulter v. Webster, 13 Weekly Rep. 289.) But in this country, so far as I can discover, it has been uniformly held that the plaintiff can recover such expenses if the law imposes upon the relatives for whose benefit the suit is brought the obligation to bear them. (Penn. R.R. Co. v.Bantom, 54 Penn. St. 495; Owen v. Brockschmidt, 54 Mo. 285;Roeder v. *Page 447 Ormsby, 22 How. Pr. 270.) The amount of the necessary funeral expenses is an item of the pecuniary damages suffered from the death by the party obliged to pay them, and here these expenses fell upon the plaintiff, the husband of the deceased. The action was brought for the benefit of himself and his children, and under section 11 of the act, chapter 782 of the Laws of 1867, he was entitled to receive one-third of the amount recovered, and the other two-thirds were to be divided equally among his children. Under the statute of 1847 as amended it matters not that some of the next of kin for whom the action is prosecuted may suffer greater pecuniary loss from the death than others. The sum to be recovered by the personal representative represents the entire pecuniary loss resulting from the death to each and all the relatives mentioned in the statute. It is immaterial, therefore, that the children were not bound to defray these funeral expenses and that all of them fell exclusively upon the husband. They form an item of the pecuniary loss caused by the death, and were proper for the consideration of the jury in estimating the damages to be awarded.

The judgment should, therefore, be affirmed.

All concur, except ANDREWS, Ch. J., who dissents in respect to allowance of funeral expenses; RAPALLO, J., absent.

Judgment affirmed.