
    Bridget Geraghty, App’lt, v. Jacob New, Resp’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 5, 1894.)
    
    Parent and child—Loss of service.
    In an action by a mother for loss of services of an infant child, the mother must allege and prove that, at the date of the accident, the child was in her service.
    Exceptions taken by plaintiff to the dismissal of her complaint -ordered to be heard in the first instance at the general term. The action was brought to recover damages for the loss of services of the plaintiff’s minor son, who was injured on the 31st day on March, 1891, in a passenger elevator in defendant’s premises, 24 North Chambers street. At the time of the accident the plaintiff’s husband, the father of the minor, was living, and he died nine months and twelve days after the accident to the child. Upon proof of these facts the trial court dismissed the complaint on the ground that the plaintiff had no cause of action:
    
      Benjamin Patterson, for app’lt; Campbell & Murphy, for resp’t.
   Daly, C. J.

The right of a parent to recover for injuries to a child is in an action for loss of services and is based, therefore, upon the supposed relation of master and servant, and not upon the relation of parent and child, Kennedy v. N. Y. C. & H. R. R.R. Co., 35 Hun 186. Such right of action can only accrue to one who stands in the relation of master to the child when the wrong is inflicted. A person by whom the relation is subsequently assumed, or upon whom it subsequently devolves, cannot of course have such an action for the injury done not to him but to a former master. As the father was living when this child was injured, he only had the right of action against the wrongdoer, for his right alone was affected by the trespass.

The right of a mother, a widow, to recover for the loss of services of her child does not exist unless the child resides with her and is supported by her at the time of the commission of the wrong which deprived her of its services. At common law, the mother has not, like the father, a legal right to the services of a minor child, and there is consequently no ground for implying the relation of master and servant between them. The relation must be actual or cannot exist. The father may have an action even although his child be actually in the service of another at the time of the infliction of the injury, for he has a legal right to the services of the child .and may command them at any time; but the mother has no si legal right and there is no relation of master and servant betw her and the child while the father is living. The father has y action for loss of services in a case of seduction, though, at' /e time of the commission of the offence, the daughter was in the service of the wrongdoer or of a third party; but if the father be dead, the mother has no action unless the daughter at the time of the offense resides with her. This was held where the seduction was in the lifetime of the father, but the child was not born until after his death and the mother paid the lying in expenses. It was adjudged that she could not maintain an action because the daughter was not in her service but the service of the father at the time of the commission of the offence. And so where the daughter was seduced by the defendant while in his service, and in consequence of her pregnancy returned to her motner who maintained her until after her confinement. Lord Denman said that to support such an action, the defendant’s act must have been wrongful to the plaintiff; and he asks, how can it be unless the relation of master and servant subsists at the time of the seduction. On the same point, Gibson, 0. J., said: “A party cannot entitle himself to an action for what was no wrong to him.” There is no action maintainable except upon the ground of the supposed relation of master arid servant Bartley v. Richtmyer, 4 N. Y. 38, where the authorities above referred to are reviewed.

The courts do not lose sight of the old principle that the loss of services is the foundation of the action, 17 Am. & Eng. Ency. of Law, 388 and cases cited; White v. Nellis, 31 N. Y. 405 ; Dain v. Wycoff, 7 N. Y. 191; Mulvehall v. Millward, 11 N. Y. 343. In the present case the plaintiff, the mother of the child, was not entitled to defendant’s services at the time of the injury complained of because the father was living and upon principle and authority she cannot recover damages for such injury. In an action by a mother for damages for loss of services of an infant child, the mother must allege and prove that at the date of the accident the child was in her service. Matthews v. Mo. P. R. Co., 26 Mo. App. 75.

By a late statute of our state, Chap. 175, Laws of 1893, taking effect March 22nd, 1893, every married woman is constituted joint guardian of her, children with her husband, with equál powers, rights and duties. What effect this provision may have upon a right of action for injuries to a child, inflicted after the passage of the act, may be an interesting question; but the injury complained of in this action occurred before the law had invested' the mother with rights similar or equal to those of the father.

The complaint was, therefore, properly dismissed; the exceptions must be overruled and judgment ordered for the defendant.  