
    JOHN RYALL, Administrator, etc., Plaintiff and Appellant, v. JAMES KENNEDY, Defendant and Respondent.
    I. VESSELS."'
    1. Negligence of officers.
    
      (a) Steward, what is negligence by.
    
    1. When, for the purposes of fumigation, under the direction of the health officer, the steward (as is his duty) clears the passengers from the steerage, and furnishes the health officers with the drinking vessels of the passengers, in which to put the fumigating compound, being a poisonous substance, and, after the fumigation, orders the passengers back to the steerage without having removed the drinking utensils, or seeing that they are thoroughly cleaned, he knowing the character of the fumigating substance, is guilty of negligence.
    
      (b) Passenger, what is not contributory negligence.
    
    1. A mother allowing one of her children, of five years of age, to play about the steerage, in her presence, she not knowing' any deleterious substance to be contained in the drinking vessels, is not guilty of contributory negligence.
    
      (a) This although she had seen the child take the cup to drink out of it.
    (c) Captain of merchant vessel, liability of.
    
    1. He is personally liable for injuries caused by the negligence of his subordinates during the voyage, among them the steward.
    
      
      (a) Public armed vessels. The position of the captain of a public armed vessel is different from that of the captain of a merchant vessel.
    
      (d) Voyage, when not ended.
    
    1. Not until the vessel is moored at her point of destination. The master’s liability continues until then.
    
      (a) Health officer, visit of does not relieve the master.
    
    1. It does not divest him of his general power and control.
    H. DEATH.
    1. Action fob damages fob death caused by negligence.
    (a) What not necessary to maintain
    
    
      1. Special pecuniary damage is not.
    
      (b) By whom to be brought.
    
    1. Only by a representative of the deceased appointed by a court having jurisdiction.
    IH. DOMICIL AND HABITATION.
    1. Infant.
    
      (а) Its domicil and habitation follows that of its father', and after the death of the father, that of its mother, in the absence of fraud, until her re-marriage.
    3. What sufficient to constitute a domicil ob habitation.
    («) Prima fade’evidence. Being at a place is prima facie evidence of a domicil.
    (б) Where one came to the city of New York as an emigrant, and resided there for seven months, when he was joined by his wife and children, except one which died on the voyage, and he and his family continuously resided in the city of New York for five years,
    
      Held,
    
    that he was an inhabitant of the city of New York at the time of the death of the child which died on the voyage, the prima facie evidence not having been in any way refuted.
    IY. SURROGATE’S JURISDICTION.
    1. Upon above principles, the child at the time of its death was an inhabitant of the county of New York, although it had never been within the county. And the surrogate of Hew York had jurisdiction to grant letters of administration on its estate.
    Before Curtis and Sedgwiok, JJ.
    
      Decided February 7, 1876.
    Appeal from a judgment dismissing the complaint.
    
      The plaintiff sues as administrator of his son, an infant, aged four years and nine months at the time of his death, to recover, under the statutes of 1847, chap. 450, and 1849, chap. 256, for the pecuniary injuries suffered by the next of kin of the deceased, by reason of his death.
    The plaintiff left London, England, in July, 1870, and since the 27th of that month has resided in the city of ¡New York. On March 2,1871, his wife and his two .children, one being the deceased, and the other aged three months, sailed in the steamship City of Brussels, commanded by the defendant, to join him.
    Upon March 12, the ship arrived in this port, and. having small-pox on board went to the quarantine anchorage, opposite the quarantine station on Staten Island, about a quarter of a mile from the Staten Island shore west of the main channel. The health officers came on board, and, after clearing the cabins of all the passengers, and ordering them on deck, fumigated the ship. The material used on this occasion to fumigate the ship was a deadly poison, and was distributed around the cabins in basins and in the passengers’ pannikins, which are their drinking cups. The health officers, closing the cabins, and leaving instructions as to the length of time they should be kept closed, and as to the removal of the vessels, left the ship, and went on shore. In about an hour after, the head-steward of the ship came and ordered the plaintiff’s wife and two children down into the cabin, where, after remaining about half an hour, her little boy, the deceased, came running and crying to her, with a pannikin in his hands, with his tongue protruding from his mouth, thick and white, having drank the contents of the pannikin, which turned out to be some of this deadly poison which had been used to fumigate the ship. The steward came into the cabin and took the pannikin and threw it out of the port-hole, and said, “My God ! it is poisoned! ” and took the child to the ship’s hospital, where he died in about three hours after, from the effects of drinking this deadly poison from a drinking-cup carelessly and negligently left standing in the passenger’s cabin.
    Letters of administration were granted on the infant’s estate by the surrogate of New York county, to the plaintiff.
    The defendant was not in any way interested in the steamship, as owner or otherwise, further than being the captain.
    Steamships are fumigated in pursuance of statutes of this state.
    At the close of the plaintiff’s case, a motion was made to dismiss the complaint, which was denied at that stage of the case ; but after the testimony of the defendant had been introduced, the motion for judgment and to dismiss the complaint was renewed and granted.
    
      Salter & Cowing, attorneys, and of counsel for appellant, urged :
    I. The master of a ship is personally liable to third persons for any damage happening to them by reason of the negligence of himself or his mariners [Shearman & Redfield on Negligence, p. 131, sec. 113 ; Dennison v. Seymour, 9 Wend. 1; Schieffelin v. Harvey, 6 Johns. 169; Foot v. Wiswall, 14 Id. 303 ; Abbott on Shipping, p. 231, and notes on p. 231 and 232; Watkinson v. Langton, 8 Johns. 213; Abbott on Shipping, p. 173, note).
    II. The domicil and residence of the deceased, who was living with his parents, was the same as theirs (Story on Conflict of Laws, sec. 46 ; Sprague v. Litherbury, 4 McLean, 442). At the time of the death of the plaintiff’s child, he, the plaintiff and father of the child, was actually residing in the city of New York, and the mother and her two children were on their way to join the father, to make his home their home. The domicil of the child is that of the father, which, in this case was the city and county of New York. (3 Ohio R. 101; 4 Greenleaf R. 47.) Bouvier’s law dictionary and Webster’s dictionary both define an inhabitant of a place to be “One who has his domicil in a place, or has a fixed residence in a place.” Under the above definitions, the plaintiff,4he father, and his infant son, were both inhabitants of the city and county of New York, and the Revised Statutes provide that, “The surrogate of each county shall have power to grant letters of administration of the goods, chattels and effects, where an intestate at or immediately previous to his death, was an inhabitant of his county.” Letters may be granted to a foreigner where he resides in this state. The learned justice erred in refusing to allow the plaintiff to prove that the mother came to the city of New York to join her husband, and for the purpose of taking up her abode here.
    III. In cases of this kind no proof of pecuniary or special damages is necessary (Ihl, &c., v. The 42d St. R. R. Co., 47 N. Y. 320).
    IV. There was upon the question of negligence but two questions: 1st. Was the defendant guilty of negligence ? 2d. Was the deceased free from negligence % There certainly was abundant evidence in the case to bring the case within the rule that the plaintiff was entitled as matter of right to have these issues submitted to the jury (Wolfkiel v. Sixth Ave. R. R. Co., 38 N. Y. 49 ; No. 11, New York Weekly Digest (similar case), p. 225 ; Berrhart v. Rensselaer and Saratoga R. R. Co., 32 Barb. 165; William v. O’Keefe, 24 How. 116).
    V. The plain, uncontradicted, and unimpeached evidence in this case clearly establish facts which not only show that the defendant was negligent, but that the deceased and his mother were both free from negligence; but even if the inferences to be drawn from the admitted facts would have warranted the jury in coming to a different conclusion upon either of the above propositions, yet in the case of a nonsuit they are both to be decided in favor of the plaintiff (Cook v. N. Y. Central R. R. Co., 42 N. Y. 476 ; Wolfkiel v. Sixth Ave. R. R. Co., 38 N. Y. 49).
    
      Platt & Gerard, attorneys, and James W. Gerard and John M. Bowers, of counsel for respondent, urged :
    I. Both the intestate and his parents had always, previously to the time of the accident, been inhabitants of England,' and though his father had come to the United States before the mother and child, he had not so ranch as declared his intention of becoming a citizen at the time of the death of his child. There is nothing in the case to show that the father, at the time of the child’s death, i.e., seven months after the father’s arrival, intended to be either a citizen or an inhabitant of this state. The recital of a necessary fact to confer jurisdiction in the letters of administration, viz., being, at or immediately previous to his death, an inhabitant of the county of New York, is absolutely negatived by the proof, as above set forth (People v. Corlies, 1 Sandf. 228; Same v. Barnes, 12 Wend. 492 ; Corwin v. Merritt, 3 Barb. 341; Paff v. Kinney, 1 Bradf. 1; Sheldon v. Wright, 5 N. Y. 497). The surrogate of New York county having, therefore, no power to issue letters to the plaintiff, on the estate of the intestate, this action can not be maintained by the plaintiff. The question of the right of a surrogate to issue letters can be raised in a collateral action, and it was proper to raise it at the trial of this action (Duchess of Kingston’s Case, 2 Smith's Leading Cases, 689, and cases cited; Bolton v. Jacks, 6 Robt. 166 ; Kentz v. McNeil) 1 Den. 436).
    II. No negligence was proved against the steward or any of the employees of the vessel. There is nothing in the case to show that it was part of the duty of the steward or any one else on the steamship to take away the vessels used by the health officers after the fumigation ; if such work was done by any. of them it was done under the direction of the health officers, in pursuance of the authority given them by the above acts, and as their representative. The performance of such work by any of the employees of the vessel was not brought home to the knowledge of the captain; it was not done with his consent or by his authority, and was not any part of the regular duties of any of the employees of such vessel—certainly not a duty with which the captain could be considered to be in any way connected.
    III. In the absence of any decision holding the captain of a vessel liable in such a case as this, the general rule that an agent, manager, or servant, is not answerable for the negligence even of those whom he has retained for the service of his employers, must apply. In such cases the action must be brought against the hand committing the injury, or against the principal for whom the act is done or not done (Dunlaps’s Paley’s Agency, chap. 6, sec. 2, p. 402; City of Buffalo v. Holloway, 7 N. Y. 493 ; and cases cited). That the master of a vessel is not liable for damage done by a subordinate officer for running down another vessel during the watch of the sub-officer, see Nicholson v. Mounsey, 15 East, 382. To the same effect is the case of Blakie v. Stembridge (6 Com. Bench R., J. Scott, 893), holding that the master is notliable for injuries resulting to the packing of a cargo through the negligence of a stevedore in stowing the same, even if the master is watching the work, the stevedore not being the servant or agent of the master, so as to render him responsible. Although by the maritime law masters of vessels have been held liable in many cases for the acts of their sub-employees, yet this exception to the general rule, as to the non-liability of agents to third persons, has been established solely on the principle that the master had supreme control of all on board the vessel. In this case, however, his authority and control of his ship had been taken away by statute, and for the time being he was without control over his steamer, and both himself and his passengers and crew were subject to the authority and directions of the health officers (Laws of 1850, chap. 275). The defendant is not the superior in this case, the steward having been employed by the owners.
    IV. In any event, the child and its mother were guilty of contributory negligence. The mother says the child was so young that she. would not let it go out of her sight, and that she never let him run away from her side. How did it happen, unless she forgot that he needed the care she describes, that he was running about behind her in the steerage and rooms, so that she could not tell where he got the pannikin from ? drinking what he pleased from the numerous dishes and pannikins lying about, either on the steerage table or in the various berths and state rooms which it was no part of the steward’s business to explore ? This testimony of the mother would seem to bring the case within the well-known provision of law, that where the negligence of the party injured in any manner, or to any extent, contributes to the production of the injury, however slightly, and without such fault on his part it could not have occurred, there can be no recovery (Redfleld on Carriers, . sec. 528, Edit; and cases cited ; Wilcox v. Rome, Watertown & Ogdensburgh R. R. Co., 39 N. Y. 358; and cases cited). And no matter how gross or evident the negligence on the part of the other party, the same rule applies (Mangan v. Brooklyn City R. R. Co., 36 Barb. 237). And that the negligent acts of the parents or custodian of a child, in reference to the care of such child, prevent a recovery, in case of his death or injury, through the negligence of other parties, to the same extent as if he were an adult, .and guilty of contributory negligence (See Wharton on Negligence, sec. 311, note, and cases cited ; Burke v. Broadway and Seventh Ave. R. R. Co. 44 Barb. 529; Flynn v. Hatton, 4 Daly, 552).
   By the Court.—Curtis, J.

The defendant testifies that he was the master of the vessel, and that his interest in her was to navigate her safely, and look after the safety of the passengers. The law imposes these duties upon him, and the duties of the stewards are, as his subordinates, to care for the comfort, nourishment, and welfare of the passengers. It is their immediate office to attend to the wholesomeness and ■cleanliness of the quarters, and of the food and of the «dishes in which it is served to the passengers. It is objected that the nature of the steward’s duties is not in proof, but it sufficiently appears in the case, that it was precisely these duties which were entrusted to the steward, and which he undertook to perform.

The health officer testifies to the -care that was taken in conducting the fumigation. He says “this involved that the steward should clear the passengers from the steerage, and keep them from this dangerous ■substance.” “ The utensils in which to pour the poison were furnished by the steward. ’’ Again, he says, “Irecollect having a conversation with the steward, Caesar, on that occasion, and on this matter; I have heard of accidents before from this poison having been drank by children on steamships ; it was since this one on the National Line. There was also a case occurred in the city, I think. I have heard of cases a number of times occurring from this fumigation.”

It was the obvious duty of the steward conversant as he was with the dangers attending this fumigation, to have seen that the vessels supplied by him, and used in it, were removed from the cabin before he ordered the passengers to return there, especially as many of the passengers were of very tender years. The exclamation he made, and what he did, when the mother called his attention to the child just after it drank from the pannikin, revealed a knowledge of the danger and a consciousness that his not having removed it before, contributed to it. It appears that neglect on his part was fully established by the evidence.

The defendant insists, that in any event the child and its mother were guilty of contributory negligence. To determine that, it is necessary to refer to the testimony. The mother, who alone of those who were present at the occurrence was examined as a witness, testifies: “When I first went down, the steward came and served us with soup for our dinner; I was then sitting at the table, and my little boy sat down and took some soup with me, and then I sat down by the table in the steerage, and nursed the baby.” ‘ ‘ My little boy was playing at the back of me with some more children.” “He was playing there a good while, and was laughing quite hearty; I was nursing the baby, and did not notice the little boy for a good while. I would not let him away from my sight; he did not run up and down the steerage except while I was sitting there.” “ He would run around the table; sometimes my back would be towards him. I had been down stairs about half an hour, when my little boy came running to me; he did not come from one of the berths, he was standing behind me, playing.” “ The panniken was on a seat by the dining-table in the steerage, where he was playing. I was sitting at the corner, and he was playing behind me, and the pannikin was on the other side. When I looked around, that is where he was standing, taking the pannikin down from his mouth. He cried, and I looked around, and he was just taking the pannikin down from, his mouth.”

So far from there being any negligence on the part of the mother, she seems to have devoted herself wholly to the care of her children. This child, nearly five years of age, was in her company at the time, playing, as was natural and proper just about her, in the cabin, where the mother had reason to consider everything safe, and the place in the vessel where the child was the least exposed to danger.

The mother was ignorant of the contents of the pannikin ; it was an ordinary tin drinking cup, and if she had seen the child take it to drink from it, as was perfectly natural and proper for the child, there is no reason to think she would have prevented the child from doing so. No contributory negligence is shown on the part of the mother, and for aught that appears in the case, the most cautious adult might have been poisoned as the child was, by this act of cruel negligence on the part of the steward. The carrier who undertakes to transport passengers of tender years, owes a duty to them, in view of their inexperience and infancy, to protect them the more carefully from danger. There was no contributory negligence shown on the part of the child.

A question is raised as to whether the master of a ship is personally liable for damages to third persons, by reason of the negligence of himself or those under him on board the ship. The master testifies that he did not employ the steward, but that he was employed, by the owners in Liverpool. From the very nature of' his position and responsibility as master of the ship,, and as this very designation of his position implies, all persons employed on board, whether by the owners or by him, are his subordinates. For wise reasons of public policy, the master is responsible as well as the owners for every injury that might have been pre. vented by human foresight and care. When the owners are unknown, or reside in a foreign country, the injured party is not obliged to search for them, but he has his remedy against the master personally, who is responsible for his own negligence, and also for that of every one of his subordinates. In consequence of this . very responsibility, the law clothes the master with power to require and compfel strict obedience to his orders.

It is no answer for him to show that his subordinates are employed by the owners and not by him. He knows the responsibility of his position, and if he is not content to acquiesce in the employment of those under him by the owners, and to incur responsibility for their negligence, then he should not accept the post, or should retire from it. His position differs from that of the captain of a public armed vessel, who has no choice as to where he shall serve, but obeys the orders of his superiors, and is obliged to take the command, though he has no voice in the appointment of any one under him, and has, perhaps, grave reasons to distrust them. (Denison v. Seymour 9 Wend. 15 and 16 ; Schiefflin v. Harvey 6 Johns. 177; Watkinson v. Laughlen, 8 Id. 167; Foot v. Wiswall, 14 Id. 307.)

The defendant’s objections that the voyage was ended, and also that he had no authority on board of the ship at the time, as she was in the charge of the health officer, seem to be met by the testimony of the health officer. The latter testified that as soon as the mixturéis made below, the gas is generated, and that he and his men come up and leave, as they have nothing else to do, and no further authority, and that usually when there is no disease on board, the anchor is frequently up by this time, and the ship is left to proceed towards Hew York at once, while the fumigation is going on.

The voyage can not be considered as terminated until the vessel is moored at her point of destination, and this brief visit from the health officers of the port, and delay, does not divest the master of his general authority and control over the vessel, and which he is bound to exercise for the purpose of facilitating this very act. The fumigation of the vessel, and the removing of the sick person to the quarantine hospital, deprived him of no authority to compel the steward, who furnishes the utensils to the health officers to pour the mixture into, to take proper care of them, after he had left, and especially when the passengers were required to descend to the cabin in which they had been used. It might as well be claimed that the boarding and presence of custom house-officers to prevent smuggling, or the enforcement of any police law or regulation, deprived the master of his authority and responsibility.

The absence of proof of special pecuniary damage to the next of kin from the death of the child, would not have justified the court in dismissing the complaint. (Ihl v. The Forty-second St. R. R. Co., 47 N. Y. 32).

It is contended that the plaintiff can not maintain this action in his representative capacity, as the surrogate of the county of New York had no power to issue the letters of administration.

The act under which this action is brought, Chap. 450, Session Laws q/1847, provides that whenever the death of a person shall be caused by the wrongful act, neglect, or default of another, for which the person injured could have maintained an action for damages if death had not ensued, then such action maybe brought by and in the name of the personal representative of the deceased.

Consequently, this action can only be brought in the name of a representative appointed by a court having jurisdiction.

The surrogate of the county of New York has-jurisdiction by statute (2 R. S. 73,) to issue letters of administration, among other cases, in the following: “Where an intestate, at or immediately previous to his death, was an inhabitant of the county of such surrogate, in whatever place such death may have happened.” “Where an intestate, not being an inhabitant of this state, shall die in the county of such surrogate, leaving assets therein.”

Residence and domicil generally mean the same thing. An inhabitant is defined to be one who has his domical in a place (Crawford v. Wilson, 4 Barb. 520). The term “ inhabitant” as used in the Revised Statutes is to be construed in harmony with the law of domicil (Isham v. Gibbons, 1 Brad. R. 93). Was the intestate an inhabitant of the county of ISTew York at the time of his decease ?

The domicil of an infant follows that of its father. If the father dies, it follows, in the absence of fraud, that of its mother, until such time as the mother re-marries, when by reason of her own domicil becoming subordinate to that of her husband, that of the infant ceases to follow any further change by the mother, or, in other words, it does not follow that of its stepfather (Brown v. Lynch, 2 Brad. R. 2Í8 ; 2 Kent Com. 228 and 431; Potinger v. Wightman, 3 Merivdles R. 67 ; Somerville v. Somerville, 5 Vesey, 759 ; Inhabitants of Comnor v. Nulton, 2 Salkeld, 528 ; Andrews v. Herrot, note 2, 4 Cow. 516. Story Conflict of Laws, § 46).

This rule as to the infant’s domicil, derived from the civil law, seems for a long period to have been recognized in the common-law courts. It was held, ail the judges concurring, that where a father gains a second settlement after the birth of his child, that settlement is immediately communicated to the child, and children must be sent to their father’s settlement though never there before (Reading v. Eversley, 2 Session Cases, 116, temp. Geo. 1).

The domicil of the intestate was that of the father. He came to Hew York as an emigrant, seven months before the death of the child. His wife and children left his former domicil, and came here to join him. From the time of his arrival, July 27, 1870, he has resided in this city continously up to the time of the trial, June 15th, 1875. His answer that he came here for the purpose of living here, and making it his home, was struck out by the court at the trial.

But the case discloses that he had established a domicil in New York. In Heidenbach v. Schland (10 How. Pr. R. 477), it was held, that a person, an emigrant, having left for ever his native land, and living in this state without any determination to reside else■where, is a resident here. In Lord Thurlow’s definition, in note (Marsh v. Hutchinson, 2 Bosanquet & Puller, 230), he uses this language: “A person’s being at a place is prima faoie evidence that he is domiciled at that place, and it lies on those who say otherwise to rebut that evidence.” “It may be rebutted no doubt;” and then he states what maybe shown in rebuttal, as his being in the place for health, business, or travelling, or by military orders, or in a diplomatic capacity.

In- the present case there is nothing proved in rebuttal of the plaintiffs testimony as to his residence here.

The intestate must have had a domicil, and he •could have but one domicil, and being an infant, the law made his domicil that of the father, which was in the county where the letters of administration issued (Crawford v. Wilson, 4 Barb. 519).

Even if the jurisdiction of the surrogate can be thus collaterally impeached, as the defendant claims, it can only be upon evidence plainly disproving the recitals in the letters of administration, and it is not to be arrived at by inferences or forced interpretations. In Shelden v. Wright (5 N. Y. 497), it was held, that where certain facts were requisite to give the surrogate jurisdiction, and it appeared from the record that there was evidence tending to prove such facts, and that such evidence was adj udged to be sufficient, then that such judgment could not be collaterally impeached or contradicted.,

The injury and death of the intestate is not claimed by the plaintiff to have occurred within the limits of the county of ¡New York, though the statement of the mother that it was ip sight of Castle Garden,, and near the shore, is incongruous with her statement that it was in the quarantine. It may have occurred within the southern limits of the city, as established by the ancient grants from the crown, and which, confirmed by subsequent constitutional guarantees, are not affected by legislative enactments. If it occurred south of these limits, upon waters in the counties of Kings or ¡Richmond, then it occurred where the county of ¡New York possesses, for some1 purposes, a concurrent jurisdiction with those counties (Laws 1824, p. 359, § 2). But if the views heretofore expressed are correct, a consideration of any other questions for the disposition of the case becomes-unnecessary.

The case upon the evidence might properly have gone to the jury.

The judgment should be reversed, and a new trial ordered, with costs to abide events.

Sedgwick, J., concurred.  