Safford v. Drew. of the collision hereinafter described, and of the burning, scalding, wounding, and death of the said George R. Safford hereinafter mentioned and set forth, the defendants above named were, as plaintiff is informed and believes, the owners and possessors, and were in the use and occupation of the steamboat Empire, and then, and before that time, were running the same on the Hudson river between the city of New York and the city of Troy, and had the control and management thereof through their agents and servants. That on or about the night of the said 16th of July, the said steamboat, under the management and direction of the said defendants and their servants, was proceeding down the said Hudson river from Troy towards New York, with the said George R. Safford on board thereof as a passenger, lying and sleeping in a state-room assigned to and occupied by him as such passenger, and having proceeded below Poughkeepsie on said river, met a sloop or other vessel passing up said river, and that the said steamboat was so negligently, unskilfully, and carelessly managed, conducted, and navigated on the part of the defendants by their servants, that by and through the mere negligence, mismanagement, carelessness, and default of the said defendants and their servants, the said steamboat came in violent and forcible collision with the said sloop or other vessel, whereby the boiler or some other part of the machinery of the said steamboat was deranged, injured, or broken, so that the steam and water escaped therefrom into the state-room so occupied by the said George R. Safford as aforesaid, and without any neglect or default of the said George, burned, scalded, and otherwise injured him, the said George, so that by reason thereof soon after he died. That the channel of the said river at the place of said collision was so wide and deep as to furnish ample room for the said steamboat and sloop or other vessel to pass each other without any collision or contact whatever, and that the night was so clear and light that with a reasonable and proper lookout, care, and attention on the part of the persons in charge of the said steamboat, such collision might have been wholly avoided, and the burning, scalding,, and death of the said George R. Safford, thence ensuing, wholly prevented. Safford v. Drew. That a good and sufficient watch and look-out for other vessels navigating said river, and to avoid collision therewith, was not kept on board said steamboat Empire, and that the same was negligently and carelessly steered and guided, by reason whereof, wholly or in part, the said collision occurred, and the said burning, scalding, and death of the said George R. Safford ensued. Demurrer assigning the following grounds: 1. That the cause of this action, stated in the said complaint, did not survive to the administrator of the deceased, and the said plaintiff has not legal capacity to sue therefor. 2. That no facts are stated by which it can be determined that any damages were sustained which are recoverable in this action; nor any allegation of damage. 3. That the said complaint does not state facts sufficient to constitute a cause of action. Cowles and Jones made and argued the following points in support of the demurrer. The demurrer to the complaint is well taken, and should be sustained, because— I. At common law, the cause of action stated in the complaint died with the person, and did not survive to the personal representatives of the deceased. (3 Black. Com. 302; 1 Chitty Pldg. 78; 1 Saund. R. 216-17, note 1.) II. It is only by virtue of an express statute that the administrator can sue in a case like the present, and the complaint is fatally defective in not stating the facts necessary for a recovery under the statute. (Laws of 1847, p. 575; Laws of 1849, p.) 1. The statute gives an action only for the recovery of a pecuniary compensation for the injury resulting from the death to a particular class of persons. 2. It is, therefore, essential that the facts showing that there was an actual pecuniary injury to that class of persons should be stated. 3. The damages recoverable in the action are special, and the law always required that in such cases they should be stated with particularity. (1 Chitty Pldg. 441.) 4. The plaintiff does not in his complaint show that any damage was sustained. Safford v. Drew. Culver and Parker contra. I. The action is rightly brought by the administrator, and the right of action survived to him. 1. The action is brought under the statute (Laws of 1847, p. 575), which provides that if the party injured might have brought an action for the injuries, if death had not ensued; then, if death ensue, his personal representatives may bring the action, and the defendants are liable to them. Personal representatives are representatives of the personal estate. (Woadbin v. Bagley, 13 Wend. 456; Beecher v. Crouse, 19 Wend. 308; Jenkins v. Fryer, 4 Paige, 51.) 2. The fact that the personal representatives must bring the action settles the character of the claim-it is assets of decedent. The personal representatives are mere trustees of the estate of the decedent, they have no interest (as such) in the estate. They have no claim to anything that goes directly to the heir; much less can they have any right to any claim, demand, or other property which never did or could belong to the decedent, and which is the claim, demand, or property of other persons. A claim that goes to the executor or administrator must be one belonging to the estate of the deceased. 3. This is not an action by the parent or master for loss of service; nor of that nature in any respect. It is true the act provides that the jury, in estimating the damages, shall have reference to the injuries resulting to the wife and next of kin. But this does not give the wife and next of kin a claim against the persons doing the injury, for in that case they would be entitled to bring the action. The injury is not immediate to them, as it is in the case of parent and master, who can control the services of child and servant, and is entitled to his earnings. But the injury to wife and next of kin is consequential. The capacity of the decedent to acquire property in any way is by this statute made property. It is made an actual pecuniary value. The destruction of that capacity is a destruction of value belonging to his personal estate. The claim, therefore, goes to his administrator, as trustee, to be collected and distributed to his next of kin, under the statute of distributions. Hence follows another argument for our conclusion, viz. Safford v. Drew. 4. The statute of distributions controlling the division of the proceeds of such claims (inasmuch as they go to the administrator), shows that the claim is assets of the estate of the deceased. II. The complaint shows that damages were sustained, which are recoverable in this action. The damages were injuries to the person of the deceased. He was scalded and otherwise injured by the steam water, so that he died therefrom, and this by the neglect and default of the plaintiffs. If death had not ensued, he could have recovered for the scalding, without specifying it more particularly. But here the degree of injury is mentioned, such as to cause death soon after. Having passed that limit of life-death ensuing-by the common law the action would not survive. But the statute of 1847 enacts that it shall survive. III. The provision in the act of 1847, as to the matters to be regarded in assessing the damages, does not at all affect the right of action, or who shall be parties, or the statement of facts and circumstances constituting the cause of action. The law, allowing such a right of action to survive, might, by strict logic, have involved a seeming absurdity. Thus up to the point "articulo mortis," the injury to the decedent was an injury for which he could not bring his action, and a law allowing the right of action to survive, would give to his "personal representatives" a right to claim damages to that point, but not beyond it. Hence, no evidence could be given of the death to increase the damages. But the Legislature have avoided the difficulty, by allowing the jury to have reference, in estimating the damages, to the injuries resulting to the wife and next of kin. This does not change the nature of the action, but merely enlarges the field of evidence in the case. The nature of the action is fixed in the law. 1. That it survives. 2. That it survives to the executor or administrator. 3. That the recovery goes to the wife and next of kin, under the statute of distributions. 4. By prohibiting, (by not allowing,) the wife and next of kin from bringing the action. IV. If the complaint shows any right of action, even if the damages are merely nominal, the plaintiff is entitled to recover. Safford v. Drew. DUER, J.-The questions are certainly new which this demurrer raises, and I will not affirm that they are free from difficulty. The complaint is unquestionably good, if it avers all the facts which, if controverted, the plaintiff will be bound to prove upon the trial, in order to maintain the action, and if the question stood alone on the construction to be given to the first section of the statute, I should not hesitate to say that the only facts necessary to be proved upon the trial, and, consequently, to be averred in the complaint, are the death of the person by whose representatives the action is brought, and the wrongful act, neglect, or default of the defendant, by which the death was caused. Confining ourselves to the words of this section, they certainly imply that the action is given to recover damages for the personal injury to the deceased, and these damages, which, had not death ensued, he would himself have been entitled to recover. By the rule of the common law, his death would be a bar to the recovery, and this bar, the Legislature, by declaring that the guilty or negligent defendant, shall remain liable to an action, notwithstanding the death, or in legal phrase by declaring that the cause of action shall survive, intended to remove. Upon this construction it would also follow, as the counsel for the plaintiff contended, that the damages recovered would enure to the general benefit of the estate of the deceased, and would be assets in the hands of his executors or administrators. But the first section is not the whole act, and in this, as in all similar cases, in order to arrive at the true intention of the Legislature, all the provisions of the law must be considered. Proceeding then to the second, the only remaining section, I find that its terms, in its amended, as well as in its original, form, are wholly inconsistent with the construction which I have stated, and would otherwise adopt. After stating that the action "shall be brought in the name of the personal representatives of the deceased person," they declare that "the amount recovered shall be for the exclusive benefit of the widow and next of kin, and shall be distributed to them in the proportions provided by law in relation to the distribution of personal property left by an intestate," and that the jury shall estimate the damages "with reference to the pecuniary injury |