
    Margaret Kenney, as adm’x, etc., Resp’t, v. The New York Central and Hudson River R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    1. Negligence—Action for damages for death caused by—Code Civ. Pro., §§ 1902, 1903.
    This action was brought to recover damages for the benefit of those entitled to them, occasioned by the death of the plaintiff’s intestate, whose death is alleged to have been caused by the negligence of the defendant. The complaint alleged the negligence of the defendant, the death of the plaintiff’s intestate as a consequence, and the issue to the plaintiff of letters of administration, and also that the ‘defendant left him surviving his widow.” The complaint contained no further allegation that the decedent left him surviving a wife or next of kin, nor was it alleged that any damages were suffered by any persons by such negligence or death, but judgment is demanded for a specific sum of money. Demurrer was taken to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. Held, that Code of Civil Procedure, sections 1902, 1903, gives a right of action to the administratrix of a decedent who has left surviving him a wife or next of kin to recover damages for a wrongful act, neglect or default by which his death was caused against a party who would have been liable to him if death had not ensued, and the damages in such case recovered are exclusively for the benefit of the decedent’s widow and next of kin.
    3. Same—Complaint—Allegation in that decedent left him surviving A WIFE OB IÍBXT OF KIN, WAS ESSENTIAL".
    
      Held, that if the allegation that the intestate left a wife or next of kin was wanting, the demurrer was well taken.
    8. Same—When clerical error'in complaint will be disrgabded.
    
      Held, that the- erroneous substitution of the word defendant for decedent in the clause “the decedent left him surviving his widow, ’ was a clerical error such as could not mislead the defendant and should he disregarded.
    4. -Same—Allegation of damages not essential to complaint.
    
      Held, that the right of action is given by the statute for the act which is wrongful and negligent; that when this is established as the cause of the death the law supplies the necessary implication to the award of nominal damages, and that it was unnecessary to allege the conclusion which the law furnishes.
    6. Same—Allegation of issue of letters of administration to the plaintiff—What is sufficient
    
      Held, that the allegation that letters of administration were duly issued to the plaintiff, by the surrogate of Brie county, was sufficient.
    Appeal from interlocutory judgment overruling demurrer to the complaint.
    
      Rogers, Locke & Milburn, for app’lt; Shire & Van Peyma, for resp’t.
   Bradley, J.

The action was brought to recover damages for the benefit of those entitled to them occasioned by the death of Alexander Kinney, the plaintiff’s intestate, whose death is alleged to have been caused by the negligence of the defendant.

The complaint alleges the negligence of the defendant, the death of Kenney as the consequence, and the issue to the plaintiff of letters of administration; also that the “ defendant left him surviving his widow, Margaret Kenney.” There is in the complaint no further allegation that the decedent left him surviving a wife or next to kin. Nor is it alleged that any damages were suffered by any persons by such negligence or death, but judgment is demanded for a specific sum of money. The objection to the complaint was taken by demurrer upon the ground that it failed to state facts sufficient to constitute a cause of action. The statute gives a right of action to the administrator of a decedent who has left surviving him a wife or next of kin to recover damages for a wrongful act, neglect or default by which his death was caused, against a party who would have been liable to him if death had not ensued, and the damages in such case recovered are exclusively for the benefit of the decedent’s widow and next of kin. Code Civ. Pro., §§ 1902, 1903.

It was essential to the cause of action to represent by allegation in the complaint that the intestate left him surviving some person or persons who would be entitled to the benefit of the recovery if one should be bad. If, therefore, the allegation that he left a wife or next of kin was wanting the demurrer was well taken. It is very evident that the words ‘ ‘ defendant left him surviving his widow ” was a mere clerical error either in drawing or copying the complaint. And it is so apparent that the word “defendant ” instead of ‘ ‘ decedent ” was in that manner inserted that it may, we think, be treated as if the latter had been the word used. It is impossible to apply the phrase to the relation of the defendant. This clerical error could not have misled that party and should be disregarded. Id., § 723; Roussel v. St. Nicholas Ins. Co., 9 J. & S., 279.

The purpose of the action is to recover damages for the benefit of the decedent’s widow. The question arises whether, any allegation that damages had been sustained or that she had suffered damages by the negligence of the defendant or by reason of the death of her husband so occasioned was essential to support the complaint. It was said that the recovery depends upon the fact that damages have been sustained by the party or parties entitled to the benefit of them, and therefore, it is necessary to charge in the complaint that such damages have been suffered by the causes alleged. There is apparently some force in this contention in view of the rules of pleading that unlike the effect, which may result from evidence, no inference or implications arise in support of the pleading, but all matters upon which the right or cause of action rests must be alleged to make it good as against demurrer. Rodi v. Insurance Co., 6 Bosw., 23; Parkhurst v. Wolf, 15 J. & S., 320; Freeman v. Fulton Insurance Co., 38 Barb., 247.

The statute from which the right of action in such case is derived does not prescribe any rule óf pleading, but simply provides that for the wrongful act or neglect by which the death is caused, an action may be maintained to recover damages. But the damages awarded are a “ compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action is brought.” Code Civ. Pro., § 1904.

In common law actions founded upon wrongful or negligent acts of defendants, the damages are the result or consequence of the cause of action out of or from which they arise. And while they may be essential to recovery, they do not necessarily constitute any part of the cause of action which produces them. And, therefore, when a complaint alleges such cause of action from which damages may and presumptively do flow, the addition of the demand of judgment for a sum of money as the consequence of such cause of action is all that is necessarily required to sustain the pleading. In stating this proposition we do not embrace within it what are known as special damages, nor do we express any opinion upon the question whether or not in the class of cases now under consideration any damages which require evidence upon that subject to establish them would come within such proposition. That question is not necessarily here in the view which will be taken as we proceed.

In Safford v. Drew (3 Duer, 627, 641), the learned judge who delivered the opinion of the court, remarked that “ without saying how far it is necessary to go in such allegations, it may be stated that at least the persons who have suffered, or may suffer, such injury should be named with an averment that they had sustained a pecuniary loss to a certain amount from his death. It may be observed that the complaint there contained no allegation that the deceased left any widow or next of kin surviving him, which omisssion in the pleading was sufficient for the purposes of that case to sustain the demurrer. It is, however, suggested by the defendant’s counsel that it is necessary to allege damages because none may necessarily have been suffered by the widow on account of the death of the husband, and without which the action would have no support.

The difference, such as it may be, between the rule applicable to damages to which a plaintiff in his own right might be entitled to recover in an action for an injury to him, and where the recovery, as in this case, is dependent upon a pecuniary injury to another for whose benefit the action is prosecuted, has not been overlooked. But while in the latter, as well as in the former, there has been no actual damages proved, the law, for the act of wrong or neglect of the defendant which caused the death and thus produced the right and cause of action, permits the recovery of nominal damages. Quin v. Moore, 15 N. Y., 432, 434; McIntyre v. N. Y. C. R. R. Co., 43 Barb., 532. And such recovery rests upon legal presumption. Embrey v. Owen, 6 Exch., 353; Paul v. Slason, 22 Vt., 231; 54 Am. Dec., 75 ; Brent v. Kimball, 60 Ill., 211 ; 14 Am. R., 35 ; Fitch v. Fitch, 3 J. & S., 302. The right of action is given by ■the statute for the act which is wrongful or negligent. When this is established as the cause of the death, the law supplies the necessary implication to the award of nominal damages. It would seem to be unnecessary to allege the conclusion which the law furnishes. Whether beyond this, and so far as relates to damages which depend upon proof in that respect, they are of a nature which requires allegation to permit evidence of them as the subject of recovery, .it is now unnecessary to determine.

And upon that question we intend now to express no ■opinion. The allegation that letters of administration were duly issued to the plaintiff by the surrogate of Erie county is sufficient. These views lead to the conclusion that the ■demurrer was not well taken.

The judgment should be affirmed.

Barker, P. J.; Haight and Dwight, JJ., concur.  