Mundt v. Glokner ( 1897 )

Patterson, J.:

This action was originally brought by Edward M. Mundt, as administrator, to recover damages under the statute for the death of his intestate, alleged to have been caused by the negligence or fault of the defendant. It appeared in evidence that Edward M. Mundt was also the father of the deceased, and it was assumed that any recovery in the action would, of necessity, belong to him exclusively under the Statute of Distributions. Edward M. Mundt died, and the action was, by order, revived in the name of the present plaintiff as " administrator de bonis non, etc., of the decedent. The learned judge at the trial held the action to be altogether in tort — as it doubtless is — and that, the father being the only person who would be benefited under the statute by a recovery, the ordinary rule should apply, that, in actions to recover for wrongs to the person, the cause of action determines at the death, before judgment, of either the plaintiff or the defendant.

The decision of the question involved in this case does not depend solely upon the construction to be given to the words “next of bin,” as they are used in section 1903 of the Code of Civil Procedure. By section 1902 of that Code the right to maintain an action to recover damages for a wrongful act, neglect or default, occasioning the death of a person under the circumstances mentioned in that section, is given to the executor or administrator of the deceased, and no one else owns that cause of action. No person as next of kin has any standing in court. It is purely a cause of action and right to sue conferred upon a representative, and it never has been anything other than that. Section 1903 of the Code provides that the damages recovered in such an action are exclusively for the benefit of the decedent’s husband or wife and next of kin, and when they are collected they must be distributed by the plaintiff as if they were unbequeathed assets left in his hands after the payment, of all debts and expenses of administration. This section has been construed to mean that the cause of action given by it is not general assets of the intestate, is not subject to the payment of debts or the ordinary rules applicable to the settlement or administration of the estates of deceased persons. (Stuber v. McEntee, 142 N. Y. 200.) But the amount of a recovery is, nevertheless, something which goes to an executor or administrator as such, and is to be disposed of by him as such, but only in the particular way pointed out by the statute. In a few words, the cause of action is created by the statute, and by that alone. It never existed before the statute of 1847. The next of kin have no control of the action, and have no legal title to the cause of action. The executor or administrator is the real party in interest, and thus having the right of action he is authorized to proceed with that action and carry it to judgment, and, in case of a recovery, when he collects it or realizes it, to distribute it among those entitled under the statute. As said before, the cause of action is conferred upon the representative, and that cause of action becomes fixed in the representative; is to be enforced by him, and the death of any one particular person who answers the description of next of kin at the time the action is brought does not destroy that cause of action which is conferred on a representative only, who, when the action ripens into judgment, the proceeds of which are recovered, then makes distribution according to the statute. If an administrator personally entitled only to a share of the recovery were to die, it would not be contended that the cause of action became extinct. The beneficiaries of the recovery, when not the husband or wife, are “ the next of kin ” entitled to undistributed assets. Who could bar the right of action by release? That question has been authoritatively answered. “ 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.” (Stuber v. McEntee, supra, 203.) All the right to the cause of action vests, as said before, in the representative. The statute has made the cause of action a property"right of the executor or administrator. The liability of the defendant is one to the intestate’s estate, not a property right of the intestate himself. A recovery, when collected, is to be disposed of as undistributed assets. The question of the survival of the cause of action was not properly disposed of in the court below, and for that reason the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Williams and Ingraham, JJ., concurred; Van Brunt, P. J., and O’Brien, J., dissented.