In re the Application for Letters of Administration of the Estate of Halligan , 50 Misc. 481 ( 1906 )

Church, S.

The petitioner herein had heretofore obtained limited letters of administration upon the estate of deceased, which letters authorize her to maintain an action against the party or parties who have wrongfully caused his death. This is, of course, not a prosecution of a common-law action, but is a right of action which is solely the creature of statute.

It appears that in the petition asking for such limited letters the name of the parly who, it was claimed, had unlawfully caused the death of the decedent was given. It has since been ascertained, it is claimed, that such death was the result of the negligent act of two or more joint tort feasors; and the petitioner is apprehensive that, in consequence of this fact, she has. no standing as 'administratrix to commence an action against any person other than the one named in her preceding petition,, and she urges, therefore, that the previous letters be vacated and new letters granted.

I think this application proceeds upon a misconception of the character of the letters issued in pursuance of section 2664 of the Code. ¡Nowhere in the Code is there any limitation as to the person against whom the action must be maintained, nor is there any requirement that there should be any preliminary declaration as to the person or persons who it is claimed or believed caused the death of the decedent. The sole preliminary fact that is required to be set forth is the claim that the death of the decedent was wrongfully caused; and for this there is a cause of action under the provisions of the statute as the same has been incorporated into section 1902 of the Code.

The decision of Kirwin v. Malone, 45 App. Div. 93, is in noway in point. That was a case in which limited letters were obtained and the administratrix then attempted to maintain an action for conversion. The action of conversion is, of course, not -a statutory right, but, on the contrary, is one of the oldest' forms of common-law action and, therefore, is not within the provisions of section 2664 of the Code.

It is also claimed by the petitioner that there has been an injunction obtained in the United States courts which prohibits-the present administratrix from prosecuting her cause of action. It is not shown, however, that such injunction in any way involves the consideration of the questions raised by the petition or that the granting of the present petition will in any way obviate the same.

The application is, therefore, denied.

Application denied.