Loftus v. Pub. Serv. Interstate Transp. Co.

Decision Date10 June 1948
Citation59 A.2d 652
PartiesLOFTUS v. PUBLIC SERVICE INTERSTATE TRANSP. CO.
CourtNew Jersey Supreme Court

OPINION TEXT STARTS HERE

Action by Rose Loftus, administratrix ad prosequendum and general administratrix of the estate of Jane Ronan, deceased, against Public Service Interstate Transportation Company, for pain and suffering by plaintiff's decedent and for damages under the death act, wherein there was a judgment of nonsuit entered. On defendant's motion for an order taxing costs.

Motion granted.

Edward V. Martino, of Camden, for plaintiff.

Carl T. Freggens, of Newark, for defendant.

PROCTOR, Circuit Court Judge.

The defendant has applied for an order allowing taxation of costs.

The suit was originally commenced by Jane Ronan for damages as the result of injuries received by her when she was struck by defendant's bus in the City of Camden, New Jersey, on October 10, 1946. The complaint alleged that the aforesaid Jane Ronan resided in the City and County of Philadelphia, Commonwealth of Pennsylvania, and the defendant served a demand for security of costs, which security was filed with the clerk of this court. Thereafter Jane Ronan died and on June 27, 1947, an amended complaint was filed by Rose Loftus, administratrix ad prosequendum and general administratrix of the estate of Jane Ronan, deceased. The amended complaint set forth that the new plaintiff, Rose Loftus, resided in the City and County of Philadelphia, Commonwealth of Pennsylvania. The first count of the amended complaint further asserted that the said Rose Loftus was appointed general administratrix of the estate of Jane Ronan, deceased, by the Register of Wills for the County of Philadelphia, in the Commonwealth of Pennsylvania. It was further alleged that pursuant to R.S. 3:13-7, N.J.S.A., plaintiff had filed with the Register of the Prerogative Court of New Jersey an exemplified copy of her letters of administration which were issued by the Register of Wills of the Commonwealth of Pennsylvania. Plaintiff as general administratrix, on this court, demanded damages for the pain suffered by her decedent, Jane Ronan, and for medical expenses incurred by the aforesaid Jane Ronan.

The second count of the amended complaint, which was an action brought under our Death Act, N.J.S.A. 2:47-1 et seq., stated that the plaintiff was appointed Administratrix ad Prosequendum of the Estate of Jane Ronan, deceased, by the Surrogate of Camden County.

The defendant served a demand for security of costs on the plaintiff and such security was filed.

The case came on for trial before the court and jury in the Camden Circuit and at the conclusion of plaintiff's case defendant's motion for a non suit was granted. Defendant has now requested an order taxing the costs of the defendant against the plaintiff.

The right to costs is a creature of statute; there was no such allowance at common law. Lehigh Valley Railroad Company v. McFarland, 44 N.J.L. 674. Under R.S. 2:27-378, N.J.S.A., the prevailing party in an action at law is entitled to costs.

R.S. 2:27-381, N.J.S.A., provides: ‘If plaintiff, in an action wherein he would be entitled to recover costs on a judgment in his favor, is nonprossed or nonsuited or a judgment passes for defendant, defendant shall have judgment against plaintiff for his costs, except where plaintiff is an executor or administrator prosecuting in his representative capacity, which costs shall be taxed as prescribed by law, and for which he shall have such execution as plaintiff would be entitled to had judgment passed in his favor.’ (Italics supplied) This legislation finds its source in the Practice Act, Chapter 247, Laws of 1903, which in turn is based upon the ancient provisions of the Act of February 18, 1795, Pat.L.1800, page 149, and its English forerunners. Walton v. Taylor, 78 N.J.Eq. 266, 79 A. 437.

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