Pizzi v. Reid

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.