Ellis v. Pennsylvania Railroad

The opinion of the court was delivered by Garrison, J. This is a motion for non pros., and for the allowance of costs in favor of defendant against the plaintiff, who is an administrator suing under the “Death act.'’ The [350] court granted the non pros., but reserved the question of costs, with leave to defendant to submit a memorandum in support of the apjilication therefor against the administrator, which has now been handed to the court. In his memorandum counsel frankly admits that in the case of Kinney v. Central Railroad Co. (1870), 34 N. J. L. 273, this court decided that a defendant could not recover costs against an administrator in an action brought under the “Death act.” He also admits that for nearly fifty years this rule has been applied in this court. He then argues with much force that the rule is wrong, for the reason that the administrator does not sue in the right of his intestate, but in the right of statutory beneficiaries. We express no opinion as to whether the original decision of this question ivas correct or not, for the reason that it is the judicial habit of this court under the circumstances now before us to follow its own previous decision, leaving it to the Court of Errors and Appeals' to review the legal merits of such decision. The rule of non pros, may be entered, without costs.