
    In the Matter of the Administration of the Goods, Chattels and Credits Which Were of Martin Anderson, Deceased. Martina Anderson, an Infant, by John Ericson, her Guardian ad Litem, Respondent; John N. Robins Company, Appellant.
    
      Compromise, by an administratrix, of á claim for damages for the-negligent hilling of her intestate, approved by the surrogate — tlie order of approval not vacated on the application of a posthumous child.
    
    The widow of a decedent, in her capacity as his administratrix, brought an action to recover damages resulting from his death, alleging that it was caused by the defendant’s negligence. Thereafter she obtained an order from the Surrogate’s Court permitting her to accept $3,000. in compromise of the action.' There had been no issue of her marriage with the decedent prior to his death, or up to the time that the order of compromise was made, hut about a month after the making of this order a posthumous child was-horn to her. It did not appear that the pregnancy of the widow was known to any of the persons concerned in effecting the compromise except the widow herself.
    
      Held, that the order authorizing the compromise should not he set aside upon the petition of the posthumous child through a guardian ad litem.
    
    
      Qumre, whether the posthumous child had any standing to attack the order authorizing the .compromise.
    Appeal by the John N. Robins Company from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 16th day of January, 1903, vacating an order of said court, hearing date the 13th day of September, 1901, authorizing the administratrix- herein to settle an action brought by her against the said appellant.
    
      Edward P. Mowton, for the appellant.
    
      James O. Oropsey, for the respondent.
   Willard Bartlett, J.:

The administratrix, being the widow of Martin Anderson, brought a suit against the John N. Robins Company, under section 1902 of the Code of Civil Procedure, to recover damages for negligently causing, the death of her intestate. She obtained an order from the Surrogate’s Court of Kings county on September 13, 1901, permitting her to accept $3,0.00 in compromise of her claim in that action. There had been no issue of the marriage between her and Martin Anderson prior to liis death, or at the time she obtained letters of administration upon his estate, or when the order of compromise was made. It appears, however, that she was then pregnant, and that a posthumous child was born in October, 1901. Upon the petition of this child, through a guardian ad litem, the Surrogate’s Court, in January, 1903, vacated the order authorizing the settlement in September, 1901, on the ground that the fact of the widow’s pregnancy was concealed from the surrogate, and that if it had been disclosed it was probable that some other arrangement would have been authorized.

There is no proof in the case that the fact that the widow was with child was known to any of the persons concerned in effecting the compromise except the widow herself. The charge that they had such knowledge is made on information and belief in the petition of the guardian ad litem, without disclosing the sources of his information or the grounds of his belief. It is wholly unsupported by additional affidavits, and is positively denied by the president of the John N. Robins Company, and the gentlemen who represented that company as attorneys in the transaction. There is nothing in the papers to impugn the good faith of the settlement or to show that the statements which induced the surrogate to make the order of compromise were in any respect untrue. That order has been vacated simply because his successor in office thinks that a different settlement would have been required if the pregnancy of the administratrix had been known.

It does not seem to me that this is a sufficient reason for setting aside an order upon the faith of which the appellant has paid $3,000 to the administratrix.

I have grave doubt as to the right of the posthumous child to intervene in the proceedings at all. The next of kin, in the statutory suit for wrongfully or negligently causing death, have no legal title to the cause of action and no control of the action itself, although it is prosecuted for their benefit. (Mundt v. Glokner, 24 App. Div. 110.)

But assuming that this child has the requisite legal standing to attack the order of compromise, I think there is an utter failure of proof that it was in anywise injurious to her. The statements of fact on which that order was made remain unaffected and substantially uncontroverted. They indicated that the acceptance of $3,000 from the defendants in the. negligence suit would be advantageous to those for whose benefit the action was brought, whether few or many: This infant’s petition, through her guardian, contains nothing which justifies a different conclusion. To permit her mother to retain the $3,000 which- she had received as administratrix from the appellant, a portion of which she holds for the benefit of this very child, and .at the same time to set aside at the instance of the child the order .which alone could have induced the appellant to pay the $3,000, seems to me very far from equitable, to say the least.

I think that the order under review should be reversed.

Goodrich, P. J., Woodward, Jenks and Hooker, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.  