Cammarata v. Pub. Serv. Coordinated Transp.

• Decision Date: 25 January 1940
• Docket Number: No. 26.,26.
• Citation: 124 N.J.L. 38,11 A.2d 253
• Parties: CAMMARATA v. PUBLIC SERVICE COORDINATED TRANSPORT.
• Court: New Jersey Supreme Court

11 A.2d 253

124 N.J.L. 38

CAMMARATA

v. PUBLIC SERVICE COORDINATED TRANSPORT.

No. 26.

Court of Errors and Appeals of New Jersey.

Jan. 25, 1940.

Syllabus by the Court.

An action under the Death Act was begun in due season in the name of an administrator ad prosequendum, but none had been appointed, nor was any appointed until the day of the trial. The trial court excluded an offer of the letters in evidence and directed a nonsuit. Held, error.

Appeal from Supreme Court.

Action under the Death Act by Rosario Cammarata, administrator ad prosequendum of Salvatore Cammarata, deceased, against the Public Service Coordinated Transport. From an adverse judgment, the plaintiff appeals.

Judgment reversed to end that venire de novo issue.

Gaudielle & Shuart, of Hackensack, (James A. Major, of Hackensack, of counsel), for appellant.

Henry H. Fryling, of Newark (William H. Speer, of Newark, of counsel), for respondent.

PARKER, Justice.

This is a case arising under the "Death Act" (R.S. 2:47, N.J.S.A. 2:47-1 to 2:47-6), dating in this State from 1848 (P.L., page 151), which established a right of action for injury causing death. Since 1917 the statute has required that in cases of intestacy the action is to be "in the name of an administrator ad prosequendum of the decedent." P.L.1917, page 531, R.S. 2:47-2, N.J.S.A. 2:47-2. Plaintiff is the father of Salvatore Cammarata, who was, as claimed, fatally injured by negligence of an employee of the defendant-respondent, on or about May 20, 1936, and died that day or the next day. The action was begun July 23, 1936, and the summons and complaint show that it was brought in the name of Rosario as administrator ad prosequendum; the complaint alleged the issue of letters of administration ad prosequendum and made profert of them. The answer did not deny the averment but under Supreme Court Rule 34, N.J.S.A. tit. 2, left plaintiff to his proof. At the trial, on October 10, 1938, more than two years after the death, and therefore after the period of limitation had run (R.S. 2:473, N.J.S.A. 2:47-3), it developed that when the action was begun there had been no appointment of an administrator ad prosequendum: that on July 22, 1936, a day before the action was begun, an application for such letters had been filed with the Surrogate, but that the letters had not actually issued until the morning of the trial. As we read the stenographic transcript, the court held that, in view of the conceded facts, the plaintiff had no standing as such: the letters of administration dated October 10, 1938 were excluded from evidence, and a nonsuit was ordered. The exclusion of the letters, and the nonsuit, are the grounds of appeal.

We think the rulings were erroneous. It is undeniable that viewed technically, the omission to proceed with the application for letters in July, 1936, and the institution of an action in which it was averred that such letters had been issued, were flagrantly irregular. The reason for failure to proceed is not explained. But from a meritorious point of view, the delay worked no harm, legal or otherwise, to the defendant. The statute required an action to be brought within two years; originally the period was twelve months. The present action was brought within just over two months, so that the defendant had timely notice of the claim and every opportunity to meet it. The statute requires the suit to be "in the name of an administrator ad prosequendum"; the record of this cause so reads. The statute says that no payment...