Fitzhenry v. Consolidated Traction Co.

The opinion of the court was delivered by Lippincott, J.

The action in this case was in the name •of the father, Joseph Fitzhenry, for damages resulting to him by the death of his son, Joseph Fitzhenry, Jr., by the alleged negligence of the defendant. The summons was issued in the name of the father, and the declaration in the case averred the death of the son and claimed damages by reason of the ■death, not as administrator, but as father, for the loss of services. No grant of letters of administration was averred in the declaration.

This action was misconceived. It should have been commenced in the name of the personal representative of the deceased son, under the Death act of this state, for the benefit of the father as the sole next of kin. This form of action is. absolutely directed by the statute (Gen. Stat., p. 1188), and it could be maintained in no other way. Lower, Administratrix, v. Segal, 31 Vroom 99 .

To the declaration a demurrer was filed. The father has *144 now obtained administration of his deceased son, and a motion is made to amend by adding the words “ administrator of the estate of Joseph Fitzhenry, Jr., deceased,” after the name of the plaintiff in the summons and declaration.

It is to be observed that this amendment would not be the only one necessary to be made in order that action should be in accordance with the Death act, but conceding, for the purpose of argument, that the amendment be sufficient, yet still it is one which cannot be made under section 138 of the Practice act. Gen. Stat, p. 2556.

One of the defences to the action, if it was now commenced in the name of the administrator under the Death act, would be that the action is barred by the statute of limitations. This appears upon the face of the declaration as it now stands. By this amendment, if it could have any legal effect, it is proposed to deprive the defendant of this defence. Besides, by this amendment, new questions would be raised which are no part of the action as it now exists, and by this amendment the defendant is not only to be deprived of its rights of pleading proper and substantial defences, but the plaintiff, upon such exclusion, desires to present the same questions which might have been presented if the action had originally been instituted in the name of the administrator. The amendment would prejudice the defendant in its defences and also rests under the opprobrium of being vexatious. Lower, Administratrix, v. Segal, supra.

The motion to amend is denied, with costs.