
    Margaret Shanahan, as Administratrix, etc., of Michael Shanahan, Deceased, Respondent, v. Monarch Engineering Company, Appellant.
    Fourth Department,
    April 19, 1916.
    Workmen’s Compensation Law — effect upon right of action in death cases where no substitute is provided.
    The Workmen’s Compensation Law, as amended, does not prevent a recovery for pecuniary loss sustained by the surviving sisters and brother of the plaintiff’s intestate, as provided by section 1902 et seg. of the Code of Civil Procedure, where such sisters and brother are the only next of kin surviving, and are over eighteen years of age.
    
      It was not intended by section 19 of article 1 of the Constitution, permitting the enactment of the Workmen’s Compensation Law, or by said law itself, to take away the right of action in death cases to recover damages without providing a substitute therefor.
    De Angelis, J., dissented.
    Appeal "by the defendant, Monarch Engineering Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 18th day of December, 1915, sustaining plaintiff’s demurrer to the second defense pleaded in the answer, and also from the interlocutory judgment entered in said clerk’s office on the same day, sustaining the demurrer pursuant to said order.
    
      Love & Keating [George P. Keating of counsel], for the appellant.-
    
      Hamilton Ward [W. J. Wetherbee of counsel], for the respondent.
   Kruse, P. J.:

The question presented by the plaintiff’s demurrer to the defendant’s second separate answer is whether the Workmen’s Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], as amd. by Laws of 1914, chap. 316) prevents a recovery for the pecuniary loss sustained by the surviving sisters and brother of the plaintiff’s intestate as is provided by section 1902 et seq. of the Code of Civil Procedure.

The learned justice at Special Term held that it does not, and sustained the demurrer. (92 Misc. Rep. 466.) We have reached the same conclusion.

.We are of the opinion that the right of action to recover damages for the death of a person, as it existed at the time of the adoption of section 18 of article 1 of the Constitution (which declared that such right should never be abrogated), is not affected by section 19 of that article, adopted November, 1913, amending’ the Constitution so as to permit the enactment of the Workmen’s Compensation Law, save as that law makes provision for compensation to a person who otherwise would be entitled to a recovery in an action like this, and that the rights of the sisters and brother in this case are not affected by the provision contained in section 11 of the Workmen’s Compensation Law (as amd. supra)', which makes the liability prescribed by section 10 of that act exclusive.

I think it was not intended by the amendment to the Constitution or by the Workmen’s Compensation Law passed thereunder, to take away the right of action in death cases to recover damages, without providing a substitute therefor.

The intestate left him surviving no widow, no father or mother and no descendants. His only next of kin surviving him are the sisters and brother named in the complaint, and it is their loss, resulting from the death of their brother, occasioned through the fault of the defendant, his employer, for which the action is brought.

While provision is made by the Workmen’s Compensation Law for compensation under certain contingencies to dependent brothers and sisters under the age of eighteen years (§ 16, subd. 4, as amd. supra), it does not appear that the sisters and brother for whose benefit this action is brought are under that age. Indeed, it was conceded upon the argument that they were not. So that, unless this action may be maintained, no right to recover damages for the negligent. killing of the intestate exists at all.

I think the right of the persons for whose benefit this action is brought is not affected by the Workmen’s Compensation Law, but remains as though that act had not been passed. This view, I think, is in accord with the reasoning of Mr. Justice Scott in Shinnick v. Clover Farms Company (169 App. Div. 236), where the determination of the Appellate Term is unanimously affirmed.

The interlocutory judgment and order appealed from should be affirmed, with costs.

All concurred, except De Angelis, J., who dissented.

Interlocutory judgment affirmed, with costs, with leave to the defendant to plead over within twenty days upon payment of the costs of the demurrer and of this appeal.  