
    Clark H. Rice, Respondent, v. Postal Telegraph-Cable Company, Appellant.
    Fourth Department,
    June 15, 1916.
    Master and servant —negligence—right of next of kin to sue for fraud of master in procuring release from liability for negligence causing death.
    A cause of action by a parent as sole next of kin for the fraud of the defendant in procuring a release from the plaintiff of a cause of action for the death of the plaintiff’s son resulting from the defendant’s negligence is unaffected by sections 1903-1905 of the Code of Civil Procedure limiting the right to recover for death caused by negligence to the administrator.
    Appeal by the defendant, Postal Telegraph-Cable Company, from an order and interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 17th day of January, 1916, upon the decision of the court rendered after a- trial at the Monroe Special Term overruling a demurrer to the complaint.
    
      Hugh Satterlee, for the appellant.
    
      Earl F. Case, for the respondent.
   Lambert, J.:

This action is in form to recover damages for fraud, and arises out of the following facts: It is alleged that prior to the bringing of this action, Charles Rice, plaintiff’s son, met his death under circumstances rendering the . defendant liable for negligently causing the same. The plaintiff, father of the intestate, was his sole next of kin. Following the death of Charles Rice, the defendant and the plaintiff in this action negotiated a settlement wherein the plaintiff executed and delivered to the defendant a written release of whatever claim he might have against the defendant on account of such death. The complaint alleges that such release was procured by false and fraudulent representations, and that by reason of such fraud plaintiff was deprived of his right to damages because of the negligent killing of said Charles Rice.

The defendant demurs upon three grounds:

First. That the plaintiff has not the legal capacity to sue.

Second. That there is defect of parties plaintiff.

Third. That the complaint does not state facts sufficient to constitute a cause of action.

Briefly summarized, the position of the defendant is that by sections 1902, 1903, 1904 and 1905 of the Code of Civil Procedure the Legislature has conferred the right of action for negligently causing death upon the administrator, as distinguished from the next of kin, and that, therefore, only an administrator is entitled to bring action for any damages growing out of negligence causing death.

There is no doubt that the Legislature has conferred the right of action in negligence upon an executor or administrator, and that an executor or administrator alone can prosecute such an action in negligence.

The legal status of the next of kin as affected by these sections has been frequently discussed by the courts, and it seems to be well settled that although the right of action is vested in the administrator, yet by reason of the fact that such action is for the benefit of the next of kin, each of the next of kin becomes: vested with a property right in such a cause of action, and a' right that is descendible and transferable. (Matter of Meekin v. B. H. R. R. Co., 164 N. Y. 145; Quin v. Moore, 15 id. 432.)

In line with such conception of the rights of the next of kin under this statute are those holdings which determine that a release from the next of kin bars an action by the adminis. trator. (Doyle v. N. Y., O. & W. R. R. Co., 66 App. Div. 398.)

The demurrer conceding the truth of the allegations of the complaint, we must assume that Charles Rice met his death under circumstances rendering the defendant liable to compensate therefor in damages. Immediately thereupon the plaintiff herein became seized of a property right in such cause of action. That property right he has been deprived of through the fraud of the defendant. Upon the plainest principles of law this entitles him to recover his provable damages for such fraud. The action being in fraud and not in negligence, it remains unaffected by the provisions of the above-mentioned sections limiting the right to recover in negligence to the administrator. This is allí can see in this case.

I recommend an affirmance, with costs, and the usual permission to plead over within twenty days upon payment of same.

All concurred.

Interlocutory judgment affirmed, with costs, with leave to the defendant to plead over within twenty days upon payment of the costs of the demurrer and of this appeal.  