The plaintiff’s testator was at work in the defendant’s roundhouse at Ulster. His duties, among other things, were to take the oil cans off the engine into the oil room, fill them with oil and put them back, and to fill the headlights. He was engaged on the night in question at the door of the roundhouse, near the track, polishing his oil can. He had placed the lighted torch in the latch of the doorpost and was wiping his can with waste against the post with his back partly towards the turntable which was south of the door. Defendant’s locomotive came upon the turntable. A man with a lantern signaled it when to leave the turntable and preceded it as it went into the roundhouse. It was usual when the locomotive left the turntable to enter the roundhouse to blow the whistle so that those inside would know of its approach. There was more or less noise around the building. The testator did not hear the approách of the locomotive. The man walking ahead of it gave him no warning. Upon looking up he saw it nearly upon him. He tried to get out of the way, but was crushed against the door and received injuries which resulted in his death. He had a certain right to expect that the whistle would blow as usual and that he would thus receive notice that the locomotive *623was entering the roundhouse. The question of contributory negligence was a fair question for the jury. We cannot say as a matter of law that he was not entitled to recover.
His sole next of kin was his brother, who assigned his interest in the litigation to the plaintiff, who is the administratrix of the decedent’s estate. Apparently the assignment was not intended to transfer the entire beneficial interest in a recovery to the plaintiff, but was for convenience in prosecuting and collecting the claim. Thereafter, and during the pendency of the action, the defendant obtained from the brother a release of all his claims upon payment of $250.
The plaintiff had paid an undertaker’s bill of $166.50 and had paid other expenses incident to the injury and the litigation. The court charged the jury that if the assignment was an absolute assignment, then the release was of no effect; on the other hand, if the assignor thought he was giving a piece of paper to her so she could settle the action for his benefit, as he claims, then he had a right to release the cause of action for his damages, and it has been released except so far as it might cover the funeral expenses and the other disbursements incident to the injuries. It then permitted the jury, in case it found the assignment valid, to treat the $250 in mitigation of damages.
Under the statute the cause of action belongs to the executrix. The brother, however, was entitled to the beneficial interest in the recovery after payment of the reasonable expenses of the action, the reasonable funeral expenses and the commissions of the executrix upon the residue. (Code Civ. Proc. §§ 1902, 1903.) No act of the brother, therefore, could terminate the action and throw upon the plaintiff the costs and cause her to lose the expenses of her action and the funeral expenses. The brother whd executed the release was a witness upon the trial and was permitted to answer this question: “ Q. Mr. Bruck, did you consider that amount, $250, in full satisfaction and payment for any pecuniary loss sustained by you as next of kin of Frank J. Bruck, deceased % * * * A. I did.” This was error; for, if he had received full satisfaction and the actual damages did not exceed $250, it required a verdict for defendant. In the most favorable view to the defend*624ant the payment to Brack might be considered as mitigating any damages after payment of the reasonable expenses of the action, funeral expenses and commissions. It is very probable this ruling may have caused the verdict to go against the plaintiff.
The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event, unless the defendant stipulates that judgment may be entered for such expenses and commissions. If such stipulation is filed and the amount to be paid cannot be agreed upon, application may be made at a Special Term to have the amount determined. If such stipulation is made, the judgment is modified accordingly.
All concurred, except Smith, P. J., dissenting in opinion, in which Lyon, J., concurred.