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(No. 14.)

Against executors, for labor and services performed for testa

tor in his lifetime.

SUPREME COURT-RENSSELAER COUNTY.

Justus H. Aikin, 2d,

agt. Elihu G. Aikin, James Aikin, Jr., and

Nathaniel Aikin, executors of James Aikin, deceased.

The complaint of the abovenamed plaintiff shows to this court, that James Aikin, in his lifetime, to wit, on or about the 1st day of January, 1849, at Pittstown, in said county, became and was indebted to the said plaintiff in the sum of $1,665, for the work, labor and services of the said plaintiff, by the said plaintiff, before that time, done, performed and bestowed in and about the business of the said James Aikin, and for the said James Aikin, in his lifetime, and at his special instance and request, during a period of about nine years and three months, to wit, from the year A. D. 1838, to January, A. D. 1849, at and for the price of $15 per month. That said James Aikin died on or about the, &c., leaving a last will and testament, wherein the defendants are named as executors, and that said will has been duly admitted to probate by the surrogate of Rensselaer county, where said Aikin resided before the time of his death, and letters testamentary have issued thereon to said defendants, who have duly qualified to act as such executors. That the said James Aikin did not, in his lifetime, pay the said sum of money abovementioned, or any part thereof, to the said plaintiff, nor have the said defendants' executors, as aforesaid, since the death of the said James Aikin, nor hath either of them, as yet paid the said sum of money abovementioned, or any part thereof, to this plaintiff, although often requested so to do; but the said defendants, as such executors as aforesaid, are still justly indebted to the said plaintiff in the said sum of money abovementioned, together with the interest thereon. Therefore the said plaintiff demands judgment against the said defendants, as such executors, as aforesaid, for the said sum of money abovementioned, together with interest thereon, besides costs.

OLIN & GEER,

Plaintiff's Attorneys.

(No. 15.)

By administratrix of person negligently killed, against exe

cutors of the person by whose negligence or wrong ful act the death of the plaintiff's intestate was caused.

SUPREME COURT-COUNTY OF RENSSELAER.

Sophia Yerton, administratrix of George

Yerton, deceased,

agt. John P. Wiswall and Ebenezer Wiswall, executors of Ebenezer Wiswall, deceased.

Sophia Yerton, administratrix of George Yerton, deceased, plaintiff, for complaint in this action, says, upon her

1

The action is brought under the act of 1847 (chap. 449), as amended by act of 1849 (chap. 256), by which acts the personal representative of the deceased may maintain the action under section 113 of the Code. Several similar cases (for the same accident) were brought against the defendant's testator in his lifetime. Before a

information and belief, that on or about the 8th day of May, 1852, Ebenezer Wiswall, then residing in the village of West Troy, but now deceased, did, upon his application, procure from the County Court of the county of Albany, having jurisdiction over the subject matter thereof, a ferry license, under which he became bound" to maintain, and run for three years thereafter, a skiff ferry across the Hudson river from the city of Troy to the village of West Troy, for the purpose of conveying passen

trial was bad, the defendant in the actions died, and a motion to continue them against his personal representatives was denied at Special Term, on the ground that the cause of action did not survive, (Norton, administrator, v. Wiswall, 14 How., 42), and the decision affirmed at General Term in the third district.

The actions were subsequently commenced against the personal representatives, and a demurrer for the same cause, namely, that the actions did not survive against the personal representatives, was overruled at the Special Term, and that decision sustained at General Term in the same district (December Term, 1857).

These apparently conflicting decisions will come before the Court of Appeals for review.

The precedent here given can very readily be adapted to the case of an action brought against the wrong-doer, whether a natural person or a corporation. See such a case, and what the complaint is required to contain, Brown, administrator, &c., v. Harmon, 21 Barb., 508.

An action cannot be sustained, under this statute, by a plaintiff, as administrator of his deceased wife, for alleged malpractice, and injuries received by her from the defendant. The right of action is vested in the plaintiff as the husband of his wife, and not as administrator. (Lynch v. Davis, 12 How., 323.)

Nor can it be sustained unless the relation of master and servant exists between the party sought to be charged and the actual wrongdoer. (Blackwell v. Wiswall, 14 How., 257.)

The question involved in the case last cited, whether a lessor of a ferry was liable for the wrongful act of a ferryman in the employ of the lessee, is pending before the Supreme Court of the third district.

1 The allegation that a party thereby" became bound,&c., is a mere legal conclusion, and is improperly in the complaint.

gers across said river, and that said license contained a provision authorizing the said Ebenezer Wiswall to demand and receive certain rates of ferriage therein specified; that the said Ebenezer Wiswall, after receiving said license, continued to hold the same and to maintain and run said skiff ferry for the said period of three years.

And the said plaintiff further avers, upon her information and belief, that on or about the 13th day of October, 1854, while the said license remained unrevoked, the said Ebenezer Wiswall, by his servants or agents in his employ, did undertake, for the compensation provided for in said license, to convey the said George Yerton across the Hudson river by said skiff ferry, and in a skiff run at said ferry; that after the said George Yerton had taken passage in said skiff, and was being conveyed therein across said river, the said Ebenezer Wiswall, by his agent or servant, having command of said skiff, did carelessly and negligently upset the skiff containing the said George Yerton, who was thereupon drowned;' that the said George Yerton died intestate, leaving him surviving his widow, who is the plaintiff in this action, and no children.

And that the pecuniary injuries resulting from the death of the said George Yerton, to the wife and next of kin of the said deceased, are, at least, $5,000.2

1 In order to sustain the action, all the facts must be stated which are requisite to bring the case within the statute. Therefore there must be a positive allegation, not only of the acts, but of the qualifications presented by statute. A merely inferential charge of misconduct or negligence in the defendants is insufficient. (Brown, administrator, v. Harmon, 21 Barb., 508.)

2 The complaint must aver that the deceased left a widow or next of kin, who should be named, and that such relative suffered pecuniary injury to a specified amount from the death of deceased. The facts constituting the pecuniary injury to the surviving relative, upon which the right of action is based, must be set forth. (Stafford v. Drew, 3 Duer, 627.)

And the said plaintiff further avers, upon her information and belief, that after the death of the said Yerton, and before the commencement of this action, to wit, on or about the 18th day of July, 1856, the said Ebenezer Wiswall died, leaving a last will and testament, in which the defendants are named executors; that said will has been duly proved, and said defendants duly appointed the executors thereof by the surrogate of Albany county, and taken upon themselves the execution of such trust.

And the said plaintiff further avers, that she has been duly appointed sole administratrix of the goods, chattels and credits of the said George Yerton, deceased, by letters testamentary issued to her by the surrogate of Rensselaer county, on the, &c., and she has duly qualified and assumed the execution of such trust.

Wherefore the said plaintiff, as administratrix, &c., demands judgment against the said defendants, executors, &c., for the pecuniary injuries so sustained as aforesaid, in the sum of $5,000, besides costs of this action, to be collected out of the estate of the said Ebenezer Wiswall, deceased.

E. WOOSTER,

Plaintiff's Attorney.

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