Stuber v. McEntee

Citation142 N.Y. 200,36 N.E. 878
PartiesSTUBER v. MCENTEE.
Decision Date30 April 1894
CourtUnited States State Supreme Court (New York)
OPINION TEXT STARTS HERE

Appeal by plaintiff from a judgment of the General Term of the Superior Court of New York City, affirming a judgment entered upon the dismissal of the complaint at a trial before a jury; and also affirming an order denying plaintiff's motion for a new trial.

The action was brought by Herman Stuber and another, as administrators of William Stuber, deceased, against James D. McEntee to recover damages for the death of plaintiffs' intestate caused by the negligence of defendant.

The complaint in substance alleged that the deceased was an employee of the defendant, a plumber, and at defendant's direction went down into an excavation in West 116th Street in the city of New York, to do certain work; that the excavation had not been boarded up, and that the sides caved in, thereby causing the death of plaintiffs' intestate.

As a defense it was shown, that the defendant had paid Mr. Krause, one of the administrators, before his appointment as such, the sum of $400, and took the following receipt: “This certifies that Mr. McEntee paid this day to me $400, being payment for all expenses whatsoever, caused by the untimely death of William Stuber, a plumber's assistant, in the employ of Mr. McEntee. Further, that I shall have no further claim whatsoever against Mr. McEntee.”

The trial court dismissed the complaint, holding that where a servant, without any express direction from the master, or any assurance of safety by him, enters an excavation, the dangers of which are apparent, and consequently as well known to the servant as they would have been to the master, had he been present, the servant must be regarded in doing the imprudent act, as having assumed the consequent dangers; and also holding that the payment to Krause, upon his subsequent appointment as one of the administrators, operated as a payment to the administrators. [Reported in 61 Super. Ct. 338.]

The General Term affirmed the judgment for defendant on the opinion of the trial judge.

A. Edward Woodruff, for appellants.

Thomas C. Ennever, for respondent.

O'BRIEN, J.

The plaintiffs' intestate, a young man about 18 years old, was killed about May 12, 1890, while working in a hole or trench about thirteen feet deep and four or five feet square, by the caving in of the earth and stone which formed the wall of the excavation. The defendant is a plumber and the deceased was his apprentice. The plaintiffs sought to maintain this action upon the allegation that the death was the result of negligence on the part of the defendant in not properly shoring up or supporting the walls of the excavation where the deceased was at work. The trial resulted in a non-suit.

It was shown in behalf of the defendant that after the death he paid to one of the plaintiffs in this action, a brother-in-law of the young man, the sum of $400, which was used by the family to pay the funeral expenses and the cost of a lot in the cemetery and to purchase a gravestone to mark the burial place. The plaintiff who received the money was not then, but subsequently was appointed, one of the administrators of the deceased. He gave a receipt for the money to the defendant, in which it was stated that the payment was for all expenses caused by the untimely death of the young man, and “further, that I shall have no further claim whatsoever against Mr. McEntee.”

In deciding the motion for a non-suit, the learned trial judge assumed that a case of negligence on the part of the defendant, in omitting to shore up or support the excavation, was shown, but granted the motion upon two grounds: (1) That the deceased was guilty of contributory negligence. (2) That the receipt for the payment of the $400 was a settlement of the claim and a bar to the action.

Actions for damages by reason of injuries resulting in death were unknown to the common law, and are founded wholly upon the statute. The cause of action is no part of the assets of the estate of the deceased. The statutory liability has no existence in his lifetime and accrues only by reason of his death. It is not subject to the payment of the debts of the deceased, nor to the ordinary rules applicable to the settlement and administration of the estates of deceased persons ( Code Civ. Pro., §§ 1902, 1905). The damages are not general assets of an estate of a deceased person in the hands of the executor or administrator and subject to their control, but are exclusively for the benefit of the decedent's husband or wife and next of kin.

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. When the plaintiff, Krause, gave the receipt and received the money he was in no such position, and had no authority to bind the next of kin of the deceased by a settlement or release. The cases cited by the learned trial judge in support of his view do not, we think, control the question. It is only necessary to refer to the two leading cases in this State ...

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20 cases
  • Reilly v. Antonio Pepe Co.
    • United States
    • Connecticut Supreme Court
    • November 7, 1928
    ... ... 399, Ann.Cas. 1918A, 928; ... Meekin v. Brooklyn Heights R. Co., 164 N.Y. 145, 58 ... N.E. 50, 51 L.R.A. 235, 79 Am.St.Rep. 635; Stuber v ... McEntee, 142 N.Y. 200, 203, 36 N.E. 878; In re ... Brennan's Account, 160 A.D. 401, 145 N.Y.S. 440; ... Mundt v. Glokner, 24 A.D. 110, 48 ... ...
  • Pittsburgh, Cincinnati, Chicago And St. Louis Railway Co. v. Gipe
    • United States
    • Indiana Supreme Court
    • January 16, 1903
    ... ... applicable [160 Ind. 368] to the payment of debts of the ... estate." See, also, Stuber v. McEntee, ... 142 N.Y. 200, 36 N.E. 878 ...          If the ... person whom the statute authorizes to bring the action be ... ...
  • In re Persaud
    • United States
    • New York Surrogate Court
    • March 4, 2021
    ...for wrongful death are exclusively for the benefit of the decedent's distributees ( see ( EPTL 5-4.4[a] ); see e.g., Stuber v McEntee , 142 N.Y. 200, 36 N.E. 878 [1894] ; Matter of Maynard , 37 Misc 2d 184, 234 N.Y.S.2d 282 [Surr Ct New York County 1962] ). Additionally, the proposed alloca......
  • Pittsburg, C., C. & St. L. Ry. Co. v. Gipe.
    • United States
    • Indiana Supreme Court
    • January 16, 1903
    ... ... See, also, Stuber v. McEntee, 142 N. Y. 200, 36 N. E. 878. If the person whom the statute authorizes to bring the action be regarded as acting in his capacity as ... ...
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