Pizzi v. Reid

New York Supreme Court

Pizzi v. Reid

36 Misc. 123, 72 N.Y.S. 1053

DecidedOctober 15, 1901

StatusPublished

This text of 36 Misc. 123 (Pizzi v. Reid) 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

Pizzi v. Reid, 36 Misc. 123, 72 N.Y.S. 1053 (N.Y. Super. Ct. 1901).

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Opinion

Blanchard, J.

The defendant demurs to the complaint upon the ground that the facts alleged do not constitute a cause of action. Several alleged defects are pointed out, only one of which need be considered. The action is brought by the administrator of a deceased party to recover damages for the death of decedent, which plaintiff claims was caused by the defendant’s neglect. The action is a purely statutory one, being authorized by section 1902 of the Code of Civil Procedure. That section provides that such an action may he maintained by “ The executor or administrator of a decedent, who has left him or her surviving, a husband, wife, or next of kin.” The complaint herein fails to allege that the deceased left him surviving either a wife or next-of kin. Ho allegation whatever is' found in the complaint on this subject. As the action now stands, so far as the complaint discloses, the action is brought by an administrator of a decedent who died without leaving either a wife or next of kin. Such an action cannot be maintained and the complaint is clearly demurrable. Kenney v. N. Y. C. & H. R. R. R. Co., 49 Hun, 535, 536. The demurrer is sustained, with leave to plaintiff to plead over upon payment of costs.

Demurrer sustained, with leave to plaintiff to plead over upon payment of costs.

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Blanchard, J.

The defendant demurs to the complaint upon the ground that the facts alleged do not constitute a cause of action. Several alleged defects are pointed out, only one of which need be considered. The action is brought by the administrator of a deceased party to recover damages for the death of decedent, which plaintiff claims was caused by the defendant’s neglect. The action is a purely statutory one, being authorized by section 1902 of the Code of Civil Procedure. That section provides that such an action may he maintained by “ The executor or administrator of a decedent, who has left him or her surviving, a husband, wife, or next of kin.” The complaint herein fails to allege that the deceased left him surviving either a wife or next-of kin. Ho allegation whatever is' found in the complaint on this subject. As the action now stands, so far as the complaint discloses, the action is brought by an administrator of a decedent who died without leaving either a wife or next of kin. Such an action cannot be maintained and the complaint is clearly demurrable. Kenney v. N. Y. C. & H. R. R. R. Co., 49 Hun, 535, 536. The demurrer is sustained, with leave to plaintiff to plead over upon payment of costs.

Demurrer sustained, with leave to plaintiff to plead over upon payment of costs.

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Bluebook (online)

36 Misc. 123, 72 N.Y.S. 1053, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pizzi-v-reid-nysupct-1901.

Opinion

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