Anderson v. Gamboa

Quinn, ,J.

On leave granted, defendants Antoinette'Kaminskas, administratrix of the estate of Prank Kaminskas, and the Glens Palls Insurance Company appeal from the order of the trial court denying their motion to dismiss. The cause of action asserted against Antoinette Kaminskas, administratrix of the estate of Prank Kaminskas, was on the basis of alleged liability under what is commonly known as the dramshop act. CLS 1961 § 436,22 (Stat Ann 1968 Cum Supp § 18.933). The cause of action asserted against Glens Palls Insurance Company was as surety on the bond of Antoinette Kaminskas, administratrix, required by the sanie statute.

April 24, 1964, plaintiffs filed complaint against defendants Gamboa and Smith for damages resulting from an automobile accident that occurred January 19,1964. April 6, 1965; on motion of plaintiffs, Antoinette Kaminskas, administratrix of the estate of Frank Kaminskas, and Glens Falls Insurance Company were added as parties defendant by the order of the trial court. Summons issued the same day and the added defendants were served therewith and with an amended complaint pleading the action against them as outlined above on April 17, 1965. After defendants filed answer to the complaint and on February 10, 1966, they moved to dismiss for the reason Antoinette Kaminskas was only the administratrix of the estate of Frank Kaminskas, who was the licensee in his lifetime, and she was discharged as administratrix prior to service of summons and complaint on her, hence at the time of service, there was no such person as Antoinette Kaminskas, administratrix of -the estate of Frank Kaminskas. The appeal is from denial of this motion.

At the time of his death, December 12,1962, Frank Kaminskas was the licensee in an SDM license.¹ As executrix of his estate, Antoinette Kaminskas petitioned the probate court on March 7, 1963, for authority to continue this business, and such authority was granted May 6,1963. From September 19, 1963 to April 9, 1965, the license for this business was in the name of Frank Kaminskas’ estate, Antoinette Kaminskas, executrix. The alleged illegal sale to a minor,² defendant Gamboa, was January 19,1964.

The issue to be decided is whether plaintiffs have stated a cause of action against a proper defendant, namely: Antoinette Kaminskas, administratrix of the estate of Frank Kaminskas. The fact that this defendant is named in the complaint as Antoinette Kaminskas, administratrix of the estate of Frank Kaminskas, rather than in the manner of the license is deemed immaterial in view of PA 1961, No 236, § 2301 (CLS 1961, § 600.2301, Stat Ann 1962 Bev § 27A.2301). This issue must be decided under the terms of the statute creating the cause of action here asserted.

CLS 1961, § 436.17, as amended by PA 1962, No 35 (Stat Ann 1963 Cum Supp § 18.988) provides in part as follows:

“All licenses issued under this act shall be construed to be a contract between the commission and the licensee and shall be signed by both parties. In the case of the death of a licensee, the commission may approve the operation of the establishment by a special administrator or special administratrix, administrator or administratix, or executor or executrix duly appointed by the proper court, pending the settlement of the estate of the deceased licensee.”

Antoinette Kaminskas as fiduciary of the estate of Frank Kaminskas was the licensee at the time of the alleged illegal sale, and under the provisions of CLS 1961, § 436.17, as amended by PA 1962, No 35 (Stat Ann 1963 Cum Supp § 18.988) was liable therefor.

Affirmed, with costs to plaintiffs.

Levin, P. J., and J. H. Gillis, J. concurred.

1 CUS 1961, § 436.2q (Stat Ann 1957 Rev § 18.972[17]).

2 CLS 1961, § 436.33 (Stat Ann 1957 Rev § 18.1004).