Stuebing v. Marshall

10 Daly 406

Opinion

Beach, J.

[After stating the facts as above.]—The conclusion of the learned justice below is, in my opinion, correct. The claim created by statute, arose when the child died, and prior to the settlement with the father (L. 1847, c. 450). It was enforceable by the personal representative, but its existence in no way depended upon the appointment of an administrator. In law the claim belonged to whomsoever would be entitled to its proceeds. This was the father, and he gave release. Had the child legally settled all claims, and thereafter died from the effects of the injury, the plaintiff could not have sustained an action (Dibble v. New York & Erie R. R. Co., 25 Barb. 183). She having power to release any claim possible to arise under the statute, from her death, the release given by the person entitled to the proceeds after it had accrued, is quite as effectual. These proceeds would belong to the father, less 'expenses of administration and collection, and conld at any any time be, by him, legally assigned, and being assignable, could as readily be settled for, and the right of action from which they were to result, discharged and released (Quin v. Moore, 15 N. Y. 432.)

The judgment should be affirmed with costs.

Van Brunt, P. J., concurred.

Judgment affirmed, with costs.