
    Otto J. Lang, Resp’t, v. Houston, West Street and Pavonia Ferry Railroad Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 12, 1894.)
    
    Executob, etc—Ancillaby.
    An ancillary executor may sue to recover damages by reason of death from wrongful act.
    Appeal from judgment entered on a verdict in favor of plaintiff.
    
      Henry A. Robinson, for app’lt; G. W. Hopkins, (D. Edgar Anthony, of counsel), for resp’t.
   Follett, J.

This action was brought to recover damages arising from the death of plaintiff’s testator, caused, it is alleged, by the negligence of the defendant’s employes. At about five o’clock and fifteen minutes in the afternoon of March 9,. 1892, Mason Hirsch, in attempting to cross from the east to the west side of Broadway, was knocked down by the horses drawing one of the defendant’s cars , and so injured that he died within forty-eight hours thereafter. But two witnesses were sworn on the question of the negligence of the defendant’s employes and the contributory negligence of the decedent. Mr. Scheuer, who was engaged in business on Broadway, and familiar with the rate of speed of horse cars in that street, testified that just before the accident he signalled the driver of the car which injured the decedent that he wished to board it, but the driver refused to stop, and indicated that he should take another car, and urged on his horses, which were in the language of the witness, “going ata terrific rate of speed.” Mr. Baylor, a lawyer having an office on Broadway, was riding on this car, and stood by the driver at the time of the accident. He testified that the horses were being driven “ at a very fast rate of speed that they were galloping most of the time going up Broadway, and, in his opinion, they were traveling at the rate of twelve miles an hour. He describes the accident as follows : “ Just before the horses struck him, [Hirsch] I saw the driver didn’t notice him, and I caught the driver, and grabbed hold of his reins, and then he instantly saw him, and he put the brake on, and tried to stop. ” Ho witnesses were called by the defendant as to the rate of speed of the car, or to contradict or explain the evidence given in behalf o£ the plaintiff, and, without quoting it, we think there was sufficient to justify the jury in finding that the car was moving at a rate of speed which, in that crowded thoroughfare, was negligent, and also the driver was negligent in not observing the decedent in time to avoid the collision. The decedent was crossing Broadway at or near a street crossing, and the car, approaching from the south, was signalled by a person who wished to take it; and it was not, as á matter of law, negligent in the decedent to fail to observe that the car was moving at more than twice the usual rate of speed of horse cars on Broadway, nor was it negligent for the decedent to assume that the driver would obey the customary signal of a person desiring to take the car. The evidence justified the jury in finding that if the car had been moving at the usual rate of speed of horse cars on Broadway, or if the driver had obeyed the signal of Scheuer, who tried to take passage, the decedent would have crossed in safety; and we think the evidence was sufficient to authorize the jury to find that the decedent did not, by his negligence, contribute to the accident.

The decedent, at the time of his death, was a resident of the city of Philadelphia, in the state of Pennsylvania. He left a widow and six children, who are his next of kin and heirs. He left a will which was duly admitted to probate March 24,1892, in the state of Pennsylvania, and letters testamentary were issued to Mina Hirsch, his widow, Henry Hirsch and Alfred G. Hirsch, two of his sons. September 10, 1892, ancilliary letters were granted by the surrogate of the city and county of Hew York to the plaintiff, a son-in-law of the decedent. It is insisted in behalf of the appellant, that section 1902 of the Code of Civil Procedure gives a right of action only to “ the executor or administrator of a decedent ; ” but does not confer a right of action on an ancillary executor. This statute is a remedial one, enacted to compel those who negligently cause the death of persons to compensate the sur» viv’ng husband, widow, or next of kin of the person so killed; and, like all such statutes, should be so construed as to give, instead of witholding, the remedy intended to be provided. Lamphear v. Buckingham, 33 Conn. 237 ; Haggerty v. Railroad Co., 31 N. J. Law, 349. The important part of the section is that which gives a right of action, and not that part which provides who may enforce it, which is an incidental provision. There is nothing in the words of the statute, nor in the circumstances attending its enactment, from which it can be inferred that the legislature intended to give a right of action in case the person killed was a resident of this state, or left property in this state. The words of the statute are: “ The executor or administrator of a decedent '* * * may maintain an action to recover damages.” These words are broad enough to include ancillary executors or administrators, and nowhere in the sections relating to this subject are there found words indicative of an intent to exclude ancillary representatives, nor is there any reason, that we can see, why they may not maintain an action, unless we hold that the statute does not apply to persons killed who are not residents of this state. Section 2702 of the Code of Civil Procedure provides that all of the provisions of chapter 18 of the Code (except the fifth title, which relates to the distribution of a decedent's realty) “relating to the rights, powers, duties and liabilities of an executor or administrator, apply to a person to whom ancillary letters are granted.” Section 1902, being a part of chapter 15, and not of chapter 18, is not within the express terms of section 2702, but by the broad powers conferred by that section upon ancillary representatives it is evident, we think, that the legislature intended to give them every right of action conferred upon executors or administrators, except those specially excepted. We think the intention was to give damages to the surviving husband, widow, or next of kin, enforcible by the person who, for the time being, represented in this state the estate of the decedent.

The j udgment should be affirmed, with costs.

ALL concur.  