
    Isabetta Boffe and Mario Pisani, as Administrators, etc., of Palmarino Boffe, Deceased, Respondents, v. Consolidated Telegraph and Electrical Subway Company, Appellant.
    First Department,
    February 11, 1916.
    Tort — death caused by wrongful act — appointment of representative prerequisite to statutory action — appointment of representative after action brought — right to bring subsequent action — limitation of action.
    As an action to recover damages for negligence causing death is wholly statutory, and as such action can only be brought by a personal representative of the decedent, an action brought before the appointment of a representative is premature, and the defendant is entitled to a dismissal of the complaint.
    
      As, under the circumstances, the action was not in existence at the time the summons and complaint were served, the defect is not cured by the fact that an administrator was appointed before trial.
    As the appointment of a representative was a necessary element to the cause of action itself, a denial of the fact alleged in the complaint properly presents the issue.
    
      It seems, that a dismissal of the action on the grounds aforesaid is not upon the merits, and an action may be brought within one year from the termination of the former action by the reversal of the judgment for the plaintiff and a dismissal of the complaint, for the general provisions of the Code of Civil Procedure relating to the limitation of actions apply to actions brought under section 1902.
    Smith, J., dissented.
    Appeal by the defendant, Consolidated Telegraph and Electrical Subway Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 9th day of July, 1915, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 22d day of October, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      Thomas H. Beardsley, for the appellant.
    
      Rosario Maggio, for the respondents.
   Page, J.:

The action was to recover damages for the alleged negligence of defendant in causing the death of plaintiffs’ intestate.

This action was commenced by the service of a summons and complaint on the defendant on November 14, 1913. Letters of administration had not at that time been issued to the plaintiffs. The letters of administration bear date June 13, 1914. At the conclusion of the case defendant’s attorney moved to dismiss the complaint upon the ground that the action was prematurely brought. This motion was denied, the case submitted to the jury, and a verdict rendered for $3,000. From the judgment entered upon the verdict this appeal has been taken.

It is well settled that the action to recover for the negligent causing of death of a person is a statutory action, which had no counterpart at common law. The damages awarded for the negligent act are such as result to the property rights of the person or persons for whose benefit the cause of action was created. The statute is not simply remedial, but creates a new cause of action in favor of the personal representatives of the deceased, which is wholly distinct from, and not a revivor of the cause of action, which, if he had survived, he would have had for his bodily injury. (Matter of Meekin v. B. H. R. R. Co., 164 N. Y. 145, 153, and cases cited.) The cause of action did not arise until some one was in position to bring and maintain the action, or, in other words, until the personal representatives of the deceased had been duly appointed and qualified. (Crapo v. City of Syracuse, 183 N. Y. 395, 394, 400; Conway v. City of N. Y., 139 App. Div. 446, 448.) “It cannot be said, that a cause of action exists, unless there be also a person in existence capable of suing.” (Murray v. East India Co., 5 Barn. & Ald. 204, cited in Barnes v. City of Brooklyn, 22 App. Div. 520, 522.) It is clear, therefore, that the non-appointment of the administrators before bringing the action is not merely a lack of capacity to sue, for that presupposes an existing cause of action, which the plaintiff is incapacitated to maintain. But the due appointment and qualification of the administrators are necessary elements to the existence of the cause of action. The objection of lack of capacity to sue must be raised by demurrer if the defect appears on the face of the complaint, otherwise by a defense set forth in the answer, or it will be waived. (Code Civ. Proc. §§ 488, 498, 499.) But where the fact of their appointment is a necessary element of the cause of action itself a denial of the fact alleged in the complaint properly presents the issue. Therefore, when plaintiffs proved their appointment some months after the commencement of the action they established the fact that no cause of action existed at the time the action was brought, and defendant’s motion should have been granted. It is suggested that as the administrators had been appointed prior to the trial and there existed a cause of action at that time, the plaintiffs should not be deprived of their rights, and under our liberal statute of jeofail (Code Civ. Proc. chap. 8, tit. 1) we should disregard the error. The answer to this is twofold: First, it is not such an error as is covered by the statute as it goes to the substance of the action, and second, as the dismissal is not on the merits, another action may be brought within one year from the termination of this one by a reversal of the judgment and a dismissal of the complaint (Code Civ. Proc. § 405), as the general provisions of the Code dealing with the limitation of actions apply to actions brought under section 1902 of the Code. (Sharrow v. Inland Lines, Ltd., 214 N. Y. 101, 105, 111.)

The judgment and order should, therefore, be reversed, with costs, and the complaint dismissed, with costs.

Clarke, P. J., Scott and Dowling, JJ., concurred; Smith, J., dissented.

Judgment reversed, with costs, and complaint dismissed, with costs.  