
    Robert H. Drake, Administrator, etc., Appellant, v. Fanny Gilmore et al., Respondents.
    A husband is not next of kin of the wife, within the meaning of the act “ requiring compensation for causing death,” etc. (chap. 450, Laws of 1847, amended by chap. 256, Laws of 1849), and previous to the amendment in 1870 (chap. 78, Laws of 1870) he was not entitled to a distributive share of any recovery, under said act, for causing her death.
    Where a husband had brought an action as administrator of his deceased wife under said statute, prior to the amendment of 1870, and after the passage of such amendatory act settled the same,—Held, that the last act did not change the rule of distribution in such case, and that the husband was not entitled to a share of the sum received on such settlement.
    A construction of a statute which will deprive one class of persons of the benefit of a recovery, given by a law existing when the action was commenced, and transfers it to another, will not be adopted unless there be the clearest expression of such legislative intent.
    (Argued February 27, 1873;
    decided April 1, 1873.)
    Appeal from judgment of the General Term. of. the Supreme Court in the fourth judicial department, affirming a decree of the surrogate of Steuben county.
    On the 22d September, 1868, Hetty Drake died from, injuries received through the alleged negligence of the Erie ¡Railway Company. She died intestate, leaving plaintiff—her husband, and defendants—her mother, brothers and sisters— her surviving. She left no children. Plaintiff was appointed her administrator, and on the 4th February, 1869, commenced an action against the Erie Eailway Company to recover damages for such death. On the 30th September, 1870, the action was settled, the company paying $2,500.
    Upon settlement of plaintiff’s account the surrogate decided that he was not entitled to any distributive,share of such sum, and decreed distribution thereof among the next of kin.
    
      William Rumsey for the appellant.
    Chapter 450, Laws of 1847, amended by chap. 78, Laws of 1870, was the law in force when the money was recovered by plaintiff. (7 N. Y. Stat. at Large, 591; Ely v. Holton, 15 N. Y., 595.) The action arises from the statute and depends entirely upon it. (Beach v. Bay State Co., 30 Barb., 433-436; Crowley v. Panama R. R. Co., id., 99, 109; Whitford v. Panama R. R. Co., 23 N. Y., 465, 475; Quin v. Moore, 15 id., 432; Blake v. Midland R. R. Co., 10 Eng. L. and Eq., 437.) When the statute is amended all future proceedings fall or are governed by the amended statute. (Butler v. Palmer, 1 Hill, 324; Curtis v. Leavitt, 15 N. Y., 9, 152-154, 254; Cooley Const. Lim., 361.) The power of the legislature in such case to remit or take away the penalty is absolute. (Charles River Bridge v. Warren Bridge, 11 Peters, 420; Maryland v. B. and O. R. R. Co., 3 How., 534.) Unless the legislature express a contrary intention or vested rights will be affected, a law shall he construed as taking effect at the time of its passage. (1 Kent Com., 458; In re Evergreens, 47 N. Y., 220; Wadsworth v. Thomas, 7 Barb., 445-448.) The next of kin of Mrs. Drake had no right of action, vested or otherwise. (Westervelt v. Gregg, 12 N. Y., 211; Robinson v. Weeks, 6 How. Pr., 161-164; Crowley v. Panama R. R. Co., 30 Barb., 99, 109; Quin v. Moore, 15 N. Y., 432; Const. Lim., 359; 4 Kent Com., 202; In re Edmondson, L. R., 5 Eq., 395; 2 Black, 436, 437; Cooley Const. Lim., 361, 381; Calder v. Bull, 3 Dall., 394; Kelly v. McCarthy, 3 Bradf., 7-11.) The legislature may, at any time before the rights become absolute and vested, through remedial statutes, change the direction of title to property. (Cooley Const. "Lim., 356; 1 Kent Com., 455; Merrill v. Sherburne, 1 N. H., 455; Butler v, Palmer, 1 Hill, 324; People v. Livingston, 6 Wend., 526; Maryland v. B. and O. R. R. Co., 3 How., 534; Washburn v. Franklin, 35 Barb., 599; Curtis v. Leavitt, 15 N. Y., 9 ; The Margaretta, 2 Gall., 515; Confiscation Cases, 7 Wall., 454-462; Parmelee v. Lawrence, 48 Ill., 331; Clarke v. McCreary, 12 Sme. & M., 347; Bank of St. Mary v. State, 12 Geo., 475; Barbour v. Barbour, 46 Me., 9; Hess v. Johnson, 3 W. Va., 645; Hartshorne v. Ross, 2 Disney [Ohio], 15; Buckley v. Newland, 2 P. W., 182.) The husband is entitled to take and enjoy all the money recovered. (7 N. Y. Stat. at Large, 591; Barnes v. Underwood, 47 N. Y., 351.) The words “next of kin” may include the husband. (Sedg. on S. and C. Law, 259-262; 1 Black. Com., 59 ; 1 Kent Com., 462, 465; Fortre v. Fortre, 1 Shower, 351; Rex v. Bettesworth, 2 Str., 1111, 1112; Fittiplace v. Gorges, 1 Ves., Jr., 46-48; Humphrey v. Bullen, 1 Atk., 458; Schuyler v. Hoyle, 5 J. Ch., 206 ; Merchants' Ins. Co. v. Hinman, 15 How. Pr., 182; 34 Barb., 410; Co. Litt., 187, b.) The fact that in the amendment of 1870 the legislature inserted the word “ husband ” is no argument against this construction. (3 Kent Com., 122; 1 Redf. on Wills, 279, note.)
    
      
      W. B. Ruggles for the respondents.
    The husband is not one of the next of kin to his wife. (2 Bl. Com., 202; Bosw. Dic., title “Kindred1 Chitty’s Stats., 325; 2 R. S., 96; 2 Jar. on Wills, 36 [4th Am. ed.]; 2 Redf. on Wills, 400; 2 Kent Com., 136 ; Watt v. Watt, 3 Ves., Jr., 246; Bailey v. Wright, 18 id.; Garrick v. Ld. Camden, 14 id., 372.) The . husband not being of the next of kin, is not,entitled to a share, in the damages. (Dickins v. N. Y. C. R. R. Co., 23 N. Y., 158; Tilley v, H. R. R. R. Co., 24 id., 476.) The - right of the next of kin had accrued prior to the passage of the act of 1870, and was assignable. (Yertore v. Wisewell, 16 How. Pr., 8; Quin v. Moore, 15 N. Y., 432; Westervelt v. Gregg, 12 id., 202; Smith’s Com., § 154.) The act-of 1870 cannot be held to intend a retroactive operation, so as "to interfere with previously existing rights. (Smith’s Com., § .- 533; Dash v. Van Kleeck, 7 J. R., 477 ; 2 Dwarr. on Stat., 677.)
   Andrews, J.

The statute in force when the action was . brought against the Erie Bail way Company (Laws'1847, chap. 450, as amended by Laws of 1849, chap. 256) to. recover! ; damages for the wrongful act of the company in causing the , death of the plaintiff’s intestate prescribed.the form of the-action, the .persons for whose benefit the recovery should"bé, ■ the rule of damages and the rule of distribution. -. - . "

The action was to be brought in the name of the personal ,' representative of the deceased, for the exclusive benefit of the widow and next of kin. The damages to be recovered could- - not. exceed $5,000, and were the pecuniary injuries resulting . to the persons entitled to share in the distribution'; and the recovery- was to' be distributed to the widow and next of kin of -the deceased in the proportions provided by law; in ¡relation to -the distribution of personal property left' by persons ■ dying intestate. . ...

It was decided by this court, in Dickins v. The New York Central Railroad Co. (23 N. Y., 158), in an action brought by the husband as administrator to recover for the death of his wife, that the husband was not next of kin to the wife, within the statute, and that the pecuniary damages sustained by him in consequence of her death were not a ground or element of damages in the action.

This case, has not been overruled or questioned; and although there are cases in which the husband is spoken of as succeeding to the personal property of his wife, upon her decease, as her next of kin (Fettiplace v. Gorges, 1 Ves., 46; Schuyler v. Hoyle, 5 Johnson’s Ch. R., 206), he is not such in a strict legal sense; and the rule of construction established in Dickins v. The New York Central Railroad Co. is to be regarded as settling, in this respect, the construction of the statute.

The fund in controversy was received by the plaintiff as administrator of his wife from the railroad company in December, 1870, in settlement of the action brought by him in 1869 against the company for causing her death; and the rule of distribution is the same as if it had been collected by him upon a judgment in the action.

There can be no doubt that if the statute had remained unchanged, the husband was properly excluded by the surrogate from taking the fund or sharing in the distribution. He was not next of kin to his wife; and. where there is no widow of the. decedent, they alone are entitled to it. Jt is claimed, however, that by force of the amendment of March, 1870 (Laws of 1870, chap. 78), passed intermediate the commencement and settlement of the action, the husband is entitled to the fund. The amendment of 1870 authorizes the action given by the. statute of 1870 to be brought for the benefit of the “husband or widow and next of kin;” and that the damages may be assessed with reference to the pecuniary injuries resulting to him as well as to the persons embraced within the original act. It gives interest on the damages recovered from the time of the death, and directs that the recovery shall be distributed to “ such husband or widow and next of kin,” as in case of the intestacy of the decedent.

The saving clause is added which provides that nothing in the act contained shall apply to “any suit or proceeding heretofore commenced and now pending in any of the courts of this State.”

It is manifest that the amendment of 1870 extends the liability of a defendant in a material degrée, where the action is brought for causing the death of the wife, leaving a husband surviving. In cases where the deceased left no descendants, but collateral kindred only, his loss would in general be the main element in the recovery.

1 The legislature, by express terms in the amendment, continued the rule of liability in the original statute as to cases then pending in the courts. So that if the plaintiff’s action had been tried at the term of the court at which it was settled, the pecuniary loss of the husband would have been excluded from the consideration of the jury.

The statute of 1870 did not, in respect to the plaintiff’s action, attempt to change the rule of recovery; nor did it intend, I think, to change the rule of distribution. If it did, there would be the singular result of a recovery based upon the pecuniary loss of the next of kin of the testator, appropriated in whole or in part by the husband, to whom or for whose benefit no right of action was given.

I am not prepared to deny the power of the legislature, before the recovery of judgment in such an action^ to change the rule of distribution, or the direction of the fund which might be recovered in it. But such legislation would be contrary to sound and recognized principles; and a construction of a statute which would deprive one class of persons of the benefit of a recovery given by a law existing when the action was commenced, and transfer it to another, would so shock the sense of justice and propriety that it should not be adopted in the absence of the clearest expression of legislative intent.

There is no such intent declared in the act of 1870. The amendment, by the terms of the act, is not to affect pending suits or proceedings.

A. suit is a proceeding in a court of justice for the enforcement of a right. When this action was commenced the right of action was in the administrator, but the beneficial right to the recovery was in the next of kin; and it is not affected by the amendment of 1870.

The judgment should be affirmed, with costs.

All concur; Grover, J., concurring in result.

Judgment affirmed.  