Green v. Hudson River Rail Road

New York Supreme Court

Green v. Hudson River Rail Road

31 Barb. 260, 1859 N.Y. App. Div. LEXIS 86

CourtNew York Supreme Court

DecidedJanuary 4, 1859

StatusPublished

Cited by2 cases

This text of 31 Barb. 260 (Green v. Hudson River Rail Road) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Green v. Hudson River Rail Road, 31 Barb. 260, 1859 N.Y. App. Div. LEXIS 86 (N.Y. Super. Ct. 1859).

Pincite

Opinion

By the Court, Pratt, J.

It was held in Quin v. Moore, (15 N. Y. Rep. 432,) that the only condition on which the right of the administrator to sue under the statute depends, is the common law right of the injured person to maintain an action if he were living. That it is not required that the person killed should be a husband, father or protector. (See also Oldfield v. Harlem Rail Road Co., 4 Kern. 316.) Under these decisions, this court sitting in the sixth district held, in the case of Dickens, adm’r, v. The New York Central Rail [266]*266Road Co., (28 Barb. 41,) that the action could he sustained for the death of a married woman, although she left neither father, mother, child or descendant, These Cases would seem to dispose of the one at har. It is claimed on the part of the defendant that the person killed Could not have sustained an action if living, and therefore it does not come within the statute; that this question vras hot involved in the case of Quin v. Moore, and that it was not raised or discussed in Dickens v. The New York Central Rail Road Co. I think this point is rather too fine. The statute, in allowing an action to be sustained in cases where an action would lie by the party injured if living, does not refer to the party in any technical or narrow sense. It manifestly looks to the cause of action, rather than to the particular parties whose names it might be necessary to use upon the record. The injured party, though a feme covert* would be the substantial party. Both the action and the cause of action would survive in case of the husband’s death, while both would abate in case of her death. She is the meritorious cause of action, however the husband may be entitled to the fruits of the litigation. This point I think not well taken. Upon the other questions raised, I think the demurrer was not well taken. The judgment must therefore be affirmed, with costs.

[Onondaga General Term, January 4, 1859.

Pratt, Bacon, W. F. Allen and Mullin, Justices.]

Free access — add to your briefcase to read the full text and ask questions with AI

By the Court, Pratt, J.

It was held in Quin v. Moore, (15 N. Y. Rep. 432,) that the only condition on which the right of the administrator to sue under the statute depends, is the common law right of the injured person to maintain an action if he were living. That it is not required that the person killed should be a husband, father or protector. (See also Oldfield v. Harlem Rail Road Co., 4 Kern. 316.) Under these decisions, this court sitting in the sixth district held, in the case of Dickens, adm’r, v. The New York Central Rail [266]*266Road Co., (28 Barb. 41,) that the action could he sustained for the death of a married woman, although she left neither father, mother, child or descendant, These Cases would seem to dispose of the one at har. It is claimed on the part of the defendant that the person killed Could not have sustained an action if living, and therefore it does not come within the statute; that this question vras hot involved in the case of Quin v. Moore, and that it was not raised or discussed in Dickens v. The New York Central Rail Road Co. I think this point is rather too fine. The statute, in allowing an action to be sustained in cases where an action would lie by the party injured if living, does not refer to the party in any technical or narrow sense. It manifestly looks to the cause of action, rather than to the particular parties whose names it might be necessary to use upon the record. The injured party, though a feme covert* would be the substantial party. Both the action and the cause of action would survive in case of the husband’s death, while both would abate in case of her death. She is the meritorious cause of action, however the husband may be entitled to the fruits of the litigation. This point I think not well taken. Upon the other questions raised, I think the demurrer was not well taken. The judgment must therefore be affirmed, with costs.

[Onondaga General Term, January 4, 1859.

Pratt, Bacon, W. F. Allen and Mullin, Justices.]

Cite This Page — Counsel Stack

Bluebook (online)

31 Barb. 260, 1859 N.Y. App. Div. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-hudson-river-rail-road-nysupct-1859.

Opinion

Related

Cite This Page — Counsel Stack