Barrett v. McDonald

Smith, C. C. J.

This suit is brought to enforce a claim under the Death act. The plaintiff administrator ad prosequendumEdward T. Barrett, died subsequent to the institution of this suit, and the surrogate, on application of the next of kin, has appointed Anna M. Barrett as administratrix ad prosequendum in the place of deceased administrator. Application is now made to amend by substituting the name of the new administratrix and for some other minor changes which are not opposed.

The application, however, is opposed on the ground that the cause of action abates by the death of the administrator ad prosequéndum and is not revived by section 3 of the Abatement act, because that section provides only for reviver if the action might be originally prosecuted or maintained by the executor or administrator of the deceased plaintiff, and of course, the executor or administrator of Edward T. Barrett could not have originally maintained this suit.

In order to dispose of this question it is necessary to determine whether or not the cause of action abates by the plaintiff’s death. The cause of action is that of the next of kin, and therefore I see no reason why the amendment cannot be made. Our Court of Errors and Appeals in the case of Cooper v. Shore Electric Co., 63 N. J. L. 558, recognizes that an action does not abate by the death of the administrator. It may be that that ruling was not necessary for the decisión of the case, but it seems clear that where the cause of action does not abate, there may be a substitution for a deceased nominal plaintiff.

The plaintiff’s application will be granted.