Sakos v. Byers , 109 N.J.L. 302 ( 1932 )

The plaintiff brought this action as administrator adprosequendum under the Death act. 2 Comp. Stat., p. 1904; 1Cum. Supp. Comp. Stat., p. 926. The jury returned a verdict of no cause of action and the plaintiff appeals. It appears from the record that an attempt at settlement was made with the general administrator and money was paid thereunder. The learned trial judge directed the jury that in assessing damages credit should be given for the amount so paid. In this there was error.

The statute (Pamph. L. 1917, p. 531; 1 Cum. Supp. Comp.Stat., p. 928) gives the right of action to the administratorad prosequendum. That the moneys recovered are distributed by the general administrator, according to the law, can in no way affect the right of action. Stagg v. McCann, 95 N.J. Eq. 53; 96 Id. 327. Nor does the circumstance that the general administrator may recover for the loss to the estate between injury and death affect the present action. Soden v.Trenton and Mercer Traction Co., 101 N.J.L. 393.

The 1917 amendment to the Death act changes the procedure to enforce the claim given by the Death act. It vests the right of action for a wrongful death in the administrator adprosequendum. The legislature not only gave a cause of action but vested the right to enforce the same in a special administrator. The right to enforce the claim exists until the recovery of final judgment, and the acts of a stranger cannot disturb the proceeding.

Other matters suggested in the record need no discussion.

The judgment is reversed.

For affirmance — None.

For reversal — THE CHANCELLOR, TRENCHARD, PARKER, LLOYD, CASE, BODINE, BROGAN, VAN BUSKIRK, KAYS, DEAR, WELLS, KERNEY, JJ. 12.