Hyperlawhypertext legal database Littlewood v. Mayor 47 N.Y. Super. Ct. 547

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Littlewood v. Mayor

47 N.Y. Super. Ct. 547 15 Jones & S. 547 Court N.Y. Super. Ct. Decision date 1881-05-02 English

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p. 547
ANN LITTLEWOOD, as Admrx., &c. v. THE MAYOR, &c., OF NEW YORK.
Before Sedgwick, Ch. J., Freedman and Truax, JJ,
Decided May 2, 1881.

Headnote

Action by personal representatives, under statute, to recover for causing death by wrongful act, neglect or default—will not lie, when deceased has recovered a judgment, which has been paid, for the injuries causing his death.
Exceptions of plaintiff ordered to be heard, at gen
p. 548
eral term, in first instance, the complaint having been dismissed.
The action was brought, under the statute, to recover the sum of $5,000 damages, claimed to have been sustained by the plaintiff, as widow of Patrick Little-wood, deceased, and by the next of kin of said Little-wood, by reason of his death.
Such death resulted from injuries sustained by reason of the defective and unsafe condition of one of the streets of the city of New York, through which he was driving.
The answer, among other things, alleged, as a defense, that the plaintiff’s intestate, during his lifetime, brought suit against the defendants for the injuries claimed to have been sustained by him at the time and place mentioned, in the complaint in this action; that such suit was tried and a judgment recovered by the plaintiff for the sum of $2,500, which was paid.
The defendants’ counsel admitted on the trial that the plaintiff was duly appointed administratrix of the estate of Patrick Littlewood, and the plaintiff’s counsel admitted the paragraph of the answer in which was set up the recovery by Littlewood,in his lifetime.
The judge thereupon dismissed the complaint upon the pleadings, ordering the exceptions to be heard in the first instance at the general term.
The court, at General Term, said: “ Without passing upon the reasoning in the case of Dibble v. New York & W. R. Co. ( 25 Barb. 183 ),[1] the judgment in it, is followed as authority which requires the overruling of the present exceptions.”
E. D. Macarthy, for plaintiff, cited:
Leggatt v. Great North W. R. Co. (1 Queen’s B. Div. 599);
p. 549
Whitford v. Panama R. R. Co. ( 23 N. Y. 465 ); Oldfield v. N. Y. & H. R. R. Co. ( 14 N. Y 320 ); Quin v. Moore ( 15 N. Y. 435 ); Smith v. Smith ( 79 N. Y. 634 ).
W. C. Whitney and Arthur Martin, for defendant.

Exceptions overruled, and judgment for defendant ordered, with costs.

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