Rice v. Postal Telegraph-Cable Co.

Headnote

Bice v. Postal Telegraph-Cable Co., 174 App. Div. 39 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 15, 1916, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint which alleged that on March 20, 1913, Charles Rice, while in the employ of the defendant and as a result of its negligence, was killed in the city of Rochester by taking hold of a wire which was in contact with a high voltage wire of the Rochester Railway and Light Company; that the decedent left his father, the plaintiff in this action, as his sole next of kin; that by reason of the facts aforementioned a cause of action accrued in favor of the plaintiff through an administrator duly appointed and against the defendant to recover damages for the death of plaintiff’s said son for the benefit of said Clark H. Rice as the next of kin of said decedent; that in April, 1913, the defendant negotiated a settlement with the plaintiff of whatever claim he might have against the defendant and obtained his written release; that the representations made by the defendant to secure the release were false; and that by reason of the premises the plaintiff, as such next of kin of said Charles Rice, deceased, has been deprived of his said cause of action for damages through

administrator duly appointed, for the negligent killing of said Charles Rice, deceased.

The following questions were certified:

“ 1. Does the complaint herein state facts sufficient .to constitute a cause of action ?

“ 2. Is there a defect of parties plaintiff herein ?

“ 3. Has the plaintiff herein legal capacity to sue ?”