
    Sigmund M. Mundt, as Administrator de bonis non of Martin M. Mundt, Deceased, Appellant, v. Gertrude Glokner, Respondent.
    
      Leave to appeal to the Oourt of Appeals—next of kin, for whom an executor may sue — effect of the death of the next of loin before the trial.
    
    In an action given by section 1903 of the Code of Civil Procedure to an executor or administrator, in his representative capacity, to recover damages for a wrongful act, neglect or default occasioning the death of his decedent, it was considered by Ingraham, J., that the question who was the next of kin should be determined as of the time of the death.
    Effect on the amount of damages, of the death before the trial of the action of one originally entitled to the recovery, considered by Ingraham, J.
    Leave to appeal to the Oourt of Appeals given in such a case.
    
      Motion by the appellant, Sigmund M. Mundt, as administrator de bonis non of Martin M. Mundt, deceased, for leave to go to the Court of Appeals.
    
      Alfred Steckler, for the appellant.
    
      Marshall B. Clarke, for the respondent.
   Ingraham, J.:

As the question presented upon this appeal was novel and of first impression, we think that leave should be granted to appeal to the Court of Appeals.

The question presented, however, was simply as to whether any cause of action survived the death of the person who was the next of kin of the deceased. Necessarily the question as to what damages such next of kin sustained in consequence of the death of the deceased was not before us. We called attention to the fact that by section 1902 of the Code the right to maintain an action to recover damages for a wrongful act, neglect or default occasioning the death of a person under the circumstances mentioned in that section, is given to the executor or administrator of the deceased person in a representative capacity; that by section 1903 the damages recovered in such an action are exclusively for the benefit of the decedent’s husband or wife and next of kin; and that by section 1904 the damages awarded to the plaintiff might be such a sum as the jury, upon a writ of inquiry or upon a trial, or where issues of fact are tried without a jury, the court or referee, deemed to be a fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action was brought; and that by section 1905 the term “ next of kin,” as used in the foregoing sections, has the meaning specified in section 1870 of the Oode. By section 1870 the term next of kin” includes 'all those entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent, after payment of debts and expenses, other than a surviving husband or wife.

It is clear that the person for whose benefit damages may be recovered in such an action is such a person as was the next of kin, where no husband or wife survived the decedent; and that question would have to be determined as of the time of the death. It was not intended to be implied from anything that we said that the damage sustained by any person other than one occupying that relation to the deceased could be recovered in such an action. The person or persons who are the next of kin of the decedent are ascertained immediately upon the decedent’s death. Whatever pecuniary damage such person sustained in consequence of the death can be recovered in an action brought by the personal representatives of the deceased, and although the death before the trial of the action of one originally entitled to the recovery would have a material effect upon the amount of damage, if damage was caused to such person between the time of the decedent’s de'ath and the time of his own death prior to the entry of final judgment in the action, such damage is recoverable in the action, and is given to the personal representatives of the deceased whose death caused the injury, and from a recovery by the express terms of the statute the plaintiff is entitled to deduct expenses of the action and commissions.

We make this statement for the purpose of avoiding any misconception of the scope of our decision.

The motion should be granted.

Patterson, J., concurred; Yan Brunt, P. J., concurred in result; Barrett and McLaughlin, JJ., took no part.

Motion granted.  