Provost v. International Giant Safety Coaster Co.

Scott, J. (dissenting):

While I concede that the question is a narrow one, and not free from difficulty, I incline to the opinion that an action *86authorized by section 1902 of the Code of Civil Procedure, must be brought by an executor or administrator, original or ancillary, appointed in this State. The right of action is purely the creation of statute, and surely the Legislature which created the cause of action could determine how the proceeds of such an action should he distributed. The claim does not come to the executor or administrator from his decedent,' and forms no part of the estate.- The cause of action is really created for the benefit of the persons named in the statute, the right to prosecute it being given to the executor or administrator merely as a convenience. Indeed, under certain circumstances, an administrator can he specially appointed for no other purpose than to present.such a claim, even if there be an executor or administrator existent for general purposes. Section 1903 of the Code places the distribution of the recovery under the supervision and control of the surrogate who would, however, be unable to exercise such supervision and control over a foreign administrator. I think that the judgment and order appealed from should be reversed and the complaint dismissed, with costs to the appellant.

Ingraham, P. J., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates as stated in opinion, in which event the judgment as so modified is affirmed, without costs. Order to be settled on notice.