
    ISIDORE GOTTLIEB, ADMINISTRATOR, DEFENDANT IN ERROR, v. NORTH JERSEY STREET RAILWAY COMPANY, PLAINTIFF IN ERROR.
    Submitted February 24, 1904
    Decided November 7, 1904.
    1. An action, for the death of a wife who leaves a husband and children surviving her, cannot be maintained under the Death act. Gen. Stat., p. 1118.
    2. The case of May v. West Jersey Railroad Co., 38 Vroom 63, explained.
    
      On error to the Essex Circuit Court.
    Before Gümmere, Chibe Justice, and Justices Dixon, Garrispn and Swayze.
    Eor the plaintiff in error, Ghauncey Q. Parker.
    
    For the defendant 'in error, Samuel and Leonard Iialisch.
    
   The opinion of the court was delivered by

Garrison, J.

This action was brought under the Death act (Gen. Stab., p. 1118) by an administrator who is the husband of the deceased, who left surviving her, as her next of kin, one son. The action can be maintained only when there is in existence a person for whose benefit it is given. Cooper v. Shore Electric Co., 34 Vroom 558, 565.

Neither the husband nor the son occupies this position. The husband does not because he is not next of kin. Grosso v. Delaware, Lackawanna and Western Railroad Co., 21 Vroom 317; Myers v. Holborn, 29 Id. 193.

The son does not because, although' next of kin, he 'would not take in case of intestacy, which is the test provided by the statute. The father would do that by a common law rule that has'not been altered in this state by statute.

The ease of May v. West Jersey Railroad Co., 33 Vroom 63, relied upon as an authority for the right to maintain this suit, 'is not an authority on this point. That was a rule to show cause in this court in which a verdict that had been recovered on the basis of the benefit accruing to- the children of a deceased wife was set aside on the merits of the case. It is true that in that ease the husband was living, and that it was admitted that he had not the lega} interest necessary to maintain the action. Whether his right as administrator to maintain the action for the benefit of the children was conceded or assumed, or merely overlooked, does not appear from the opinion of Mr. Justice Lippincott, but an examination of that opinion will show that it was not decided. •• On the point now presented for decision, that case has not the force of an adjudication. The judgment must be reversed.  