
    STUBER v. McENTEE.
    
      N. Y. Court of Appeals;
    
    
      April, 1894.
    [Reversing 61 Super. Ct. 338.]
    1. Deathl] An action for damages for negligence or wrongful act causing death is wholly statutory,
    2. The same.] The right of action cannot be barred by release from, or payment to, a person who does not at the time have authority to bring an action, or in a legal sense represent the cause of action.
    3. The same.] A compromise of such a claim made -by a person having no present interest, who receives payment and gives a. release, is not a bar to an action by the same person brought in his representative capacity after he has been appointed administrator.
    
    4. Executors and admimstratorsl] The cases holding that a payment of a debt to one wfio afterward receives letters; protects,, the payer, do not hold that a stranger may compromise for the estate with, the effect to bind it, if he afterward receives letters.
    5. The same.] It seems, that the fact of such payment and its application is competent evidence in mitigation of damages in such ah action.
    6. Questions of law and fact.] 'If defendant, in an action for causing the death of his servant, killed by the caving in of an excavation, made the excavation for the deceased to work in, or if, having seen its condition, he directed the servant to work in it, the servant, in doing the work, cannot be regarded as a matter of law as having been guilty of contributory negligence, but it is a question for the jury within the doctrine of Kranz v. Long Island R. R. Co., 123 N. Y. 1.
    7. Trials ; dismissal of the complaint.] In an action for causing the-death of plaintiff’s intestate, it was shown that defendant was engaged in the plumbing business ; that the deceased was. his apprentice in his employment; and that he was killed when actually engaged in plumbing work in an excavation.—Held, that in absence of other proof or explanation, the evidence was sufficient to justify an inference that the excavation was the place which the master furnished the servant to work in, and that it was error to non-suit for want of evidence, that the deceased was directed by the defendant to work in the excavation.
    8. Pleading.J The answer to a complaint, alleging that plaintiff’s intestate had been directed by defendant “ to go down into and do certain work in an excavation which defendant had caused to be made in a specified place,” denied that defendant had directed deceased “to go down and do work in an excavation which defendant had caused to be made in ” the specified place.—Held, that such denial was a species of negative pregnant, and could not be regarded, on appeal, for the purpose of sustaining a non-suit on the ground that there was no evidence that defendant had directed deceased to go into the excavation, as having raised an issue as to whether defendant had so directed ; especially as other portions of the answer assumed the fact to be so, and the trial court did not grant the non-suit on such ground.
    Appeal by plaintiff from a judgment of the General Term of the Superior Court of New York City, affirming a judgment entered upon the dismissal of the complaint at a trial before a jury ; and also affirming an order denying plaintiff’s motion for a new trial.
    The action was brought by Herman Stuber and another, as administrators of William Stuber, deceased, against James D. McEntee to recover damages for the death of plaintiffs’ intestate caused by the negligence of defendant.
    The complaint in substance alleged that the deceased was an employee of the defendant, a plumber, and at defendant’s direction went down into an excavation in West 116th Street in the city of New York, to do certain work ; that the. excavation had not been boarded up, and that the sides caved in, thereby causing the death of plaintiffs’ intestate.
    As a defense it was shown, that the defendant had paid Mr. Krause, one of the administrators, before his appointment as such, the sum of $400, and took the following receipt: “ This certifies that Mr. McEntee paid this day to me $400, being payment for all expenses whatsoever, caused by the untimely death of William Stuber, a plumber’s assistant, in the employ of Mr. McEntee. Further, that I shall have no further claim whatsoever against Mr. McEntee.”
    
      The trial court dismissed the complaint, holding that where a servant, without any express direction from the master, or any assurance of safety by him, enters an excavation, the dangers of which are apparent, and consequently as well known to the servant as they would have been to the master, had he been present, the servant must be regarded in doing the imprudent act, as having assumed the consequent dangers; and also holding that the payment to Krause, upon his subsequent appointment as one' of the administrators, operated as a payment to the administrators. [Reported in 61 Super. Ct. 338.]
    
      The General Term affirmed the judgment for defendant' on the opinion of the trial judge.
    
      A. Edward Woodruff, for appellants.
    
      Thomas C. Ennever, for respondent.
    
      
      For a note on compromises by trustees and other representative parties, see 5 Abb. N. C. 346.
    
   O’Brien, J.

The plaintiffs’ intestate, a young man about 18 years old, was killed about May 12, 1890, while working in a hole or trench about thirteen feet deep and four or five feet square, by the caving in of the earth and stone which formed the wall of the excavation. The defendant is a plumber and the deceased was his apprentice. The plaintiffs sought to maintain this action upon the allegation that the death was the result of negligence on the part of the defendant in not properly shoring up or supporting the walls of the excavation where the deceased was at work. The trial resulted in a non-suit.

It was shown in behalf of the defendant that after the death he paid to one of the plaintiffs in this action, a brother-in-law of the young man, the sum of. $400, which was used by the family to pay the funeral expenses and the cost of a lot in the cemetery and to purchase a gravestone to mark the burial place. The plaintiff who received the money was not then, but subsequently was appointed, one of the administrators of the deceased. He gave a . receipt for the money to the defendant, in which it was stated that the payment was for all expenses caused by the untimely death of’ the young man, and “ further, that I shall have no further claim whatsoever against Mr. McEntee.”

In deciding the motion for a non-súit, the learned trial judge assumed that a case of negligence on the part of the defendant, in omitting to shore up or support the excavation, was shown, but granted the motion upon two grounds: (1) That the deceased was guilty of contributory negligence. (2) That the receipt for the payment of the $400 was a settlement of the claim and a bar to the action. ■

Actions for damages by reason of injuries resulting in death were unknown to the common law, and are founded wholly upon the statute. The cause of action is no part ■of the assets of the estate of the deceased. The statutory liability has no existence in his lifetime and accrues only by reason of his death. It is not subject to the payment •of th.e debts' of the deceased, nor to the ordinary rules .applicable to the settlement and administration of the ■estates of deceased persons (Code Civ. Pro., §§1902, 1905). The damages are not general assets of an estate of a •deceased person in the hands of the executor or administrator and subject to their control, but are exclusively for the benefit of the decedent’s husband or wife and next of kin.

The claim, before suit, cannot be barred or released except by some person who has authority to bring the action at the time, and who, in a legal sense, represents the right of action. When the plaintiff, Krause, gave the'' receipt and received the money he was in no such position, and had no authority to bind the next of kin of the deceased by a settlement or release. The cases cited by the learned trial judge in support of his view do" not,, we think, control the question. It is only necessary to-refer to the two leading cases in this State (Rattoon v, Overacker, 8 Johns. 126; Priest v. Watkins, 2 Hill, 225). These cases hold that when a person assumes to collect the assets or credits belonging to the estate of a deceased person, and who subsequently is appointed administrator of the estate, and, in that capacity brings an action upon the claim so collected, the prior payment made to him before his appointment is a defense to the party against whom the claim existed and who made the payment.. For the purpose of protecting parties making payment in good faith to the widow, or other person without authority to collect the assets at the time, the letters, when subsequently issued to them, are deemed to relate back, so as to legalize such payments. But these cases do not hold that a stranger may compromise a claim due to an estate on receiving a part only of what is due, and thereby estop himself in a subsequent suit, in a representative capacity, from collecting the residue.

If there is any such rule of law in the administration-of the estates of deceased persons, it has no application in an action like this for the recovery of -unliquidated damages under a special statute by the next of kin resulting-from a negligent or wrongful act, causing the death of their intestate. We have no doubt that the' defendant was entitled to prove the fact of payment and its application to the expenses of the funeral and burial of the-deceased, and to be credited with the same by the jury in-making its estimate of the damages which the plaintiff-should recover, if any. In this way the principle decided in the cases above referred to is given full effect, but to hold that the receipt operated as an accord and satisfaction would be extending its operation in a manner to accomplish results that cannot be sustained by reason or authority.

If the defendant made the excavation for the deceased to perform his work in, or if, having seen its condition, he directed him to work in it, then the servant was not, as matter of law, guilty of contributory negligence. It was a question for the jury within the doctrine of Kranz v. Long Island R. R. Co. (123 N. Y. 1.)

It is now claimed that there was no proof that the deceased was directed by the defendant to work in the trench, or that the defendant dug it, or had ever seen it,, or that he knew anything about it, and hence negligence on his part was not established. It must be admitted that the proof on these points is very meagre. The course of the trial, however, would seem to indicate that they were assumed, and such was the view of the learned judge in granting the motion for a non-suit. It may be that . upon a full, trial it may be made to appear that the master was not so connected with the excavation as to render him responsible for the results of the accident. But as the plaintiffs were non-suited, they are now entitled to the benefit of every fact established and every inference that might properly have been drawn by the jury, and the case must be viewed in the most favorable light that it could fairly have been by the jury, had it been submitted upon the evidence as given. It was sufficiently shown that the defendant was engaged in the plumbing business, that the deceased was his apprentice, in his employment, and, when killed, actually engaged in plumbing work in the excavation. In the absence of other proof or explanation, the inference that the trench was the place which the master furnished the servant in whifch to do his work, would seem to be reasonable, or at least possible. In the receipt which the defendant took for the $400, the deceased is described as “ a plumber’s assistant in the employ of said Mr. Mc-Entee.” Nothing appears in the case to justify any inference that the deceased was at the time of his death working for any other person, or subject to any other directions.

Moreover, we think that the defendant tendered no issue in his answer in the form required by the Code upon the allegations of the complaint,, which was to the effect that the defendant caused the trench to be made and directed deceased to work in it. On this point the allegation of the complaint is as follows : “ That on or about May 12, 1890, the plaintiffs’' intestate, William Stuber, while in the employ of the defendant, was directed by the defendant to go down and do certain work in an excavation, which the defendant had caused to be made in West One Hundred and Sixteenth Street, in the city of New York, between Seventh and Eighth Avenues, in said city, about four hundred feet or thereabouts east of Eighth Avenue, and while in said excavation and following the directions of the defendant, the said excavation”, by reason of its not having been properly constructed by said defendant, and by reason of the neglect and improper conduct of the defendant in not properly constructing and making said excavation, and in not making the same safe and fit to work in, and in accordance with the laws of the State of New York in such case made and provided, the earth on the side and around said excavation fell in and upon the plaintiffs’ intestate, the said William Stuber, and covered and buried him in the said excavation, inflicting injuries which caused his death.”

It will be seen that the fact that the defendant directed the deceased to work in an excavation which he had caused to be made is sufficiently alleged. The defendant has put the allegation in issue only by the use of the following language in the answer: *

“ First. This defendant denies that he directed William Stuber to go down and do certain work in an excavation which this defendant had caused to be made in West One Hundred and Sixteenth Street, in the city of New York, between Seventh and Eighth Avenues, in said city., about four hundred feet, or thereabouts, west of Eighth Avenue.”

This is not such a denial as is authorized by the Code. It is a species of negative pregnant (Wall v. Buffalo Water Works Co., 15 N. Y. 119; Baker v. Bailey, 16 Barb. 54). It may be that, in the absence of a motion to correct and make more certain,- such pleadings may be regarded as good upon appeal. But the whole scope of the answer, even when setting up affirmative defenses, assumes the fact the absence of which is now claimed to be fatal to the plaintiffs’ appeal..

In view of the fact that the non-suit was not granted on any such grounds, but, on the contrary, the defendant’s negligence was assumed in granting the motion,' considering the form' and substance of the pleadings, the manner in which the trial was conducted and the inferences which the jury were entitled to draw from the proof given-, we think that this point is not now sufficient to sustain the judgment of non-suit, and that there should be a new trial.

The judgment should, therefore, be reversed and a new trial granted ; costs to abide the event.

All the judges concurred.

Judgment reversed.  