
    Carmelia Pizzi, Administratrix, etc., Plaintiff, v. Michael B. Reid, Defendant.
    (Supreme Court, New York Special Term,
    October, 1901.)
    Negligence — Complaint, under Code C. P., § 1902, when demurrable.
    A complaint, in an action brought by the administrator of a male decedent under Code C. P., § 1903, against a person whose negligence is alleged to have caused the decedent’s death, is demurrable, where it fails to show that the latter left him surviving either a wife or next of kin.
    
      Demurrer to complaint.
    Amos H. Evans, for plaintiff.
    Petrasch & Burnet, for defendant.
   Blanchard, J.

The defendant demurs to the complaint upon the ground that the facts alleged do not constitute a cause of action. Several alleged defects are pointed out, only one of which need be considered. The action is brought by the administrator of a deceased party to recover damages for the death of decedent, which plaintiff claims was caused by the defendant’s neglect. The action is a purely statutory one, being authorized by section 1902 of the Code of Civil Procedure. That section provides that such an action may he maintained by “ The executor or administrator of a decedent, who has left him or her surviving, a husband, wife, or next of kin.” The complaint herein fails to allege that the deceased left him surviving either a wife or next-of kin. Ho allegation whatever is' found in the complaint on this subject. As the action now stands, so far as the complaint discloses, the action is brought by an administrator of a decedent who died without leaving either a wife or next of kin. Such an action cannot be maintained and the complaint is clearly demurrable. Kenney v. N. Y. C. & H. R. R. R. Co., 49 Hun, 535, 536. The demurrer is sustained, with leave to plaintiff to plead over upon payment of costs.

Demurrer sustained, with leave to plaintiff to plead over upon payment of costs.  