Sally Dickens was the wife of the plaintiff, and was killed by reason of the negligence of the defendant’s *42agents, on the defendant’s rail road, at Canastota station in the county of Madison, in August, 1854. The plaintiff, as her administrator, obtained a verdict against the defendant, at the Madison circuit, in March, 1857, for $1500, for injuring her and causing her death. The action was brought under and pursuant to chapter 450 of the Laws of 1847, entitled “ An act requiring compensation for causing death by wrongful act, neglect or default,” as amended by chapter 256 of the Laws of 1849.
The defendant’s counsel has moved for a new trial, on several grounds; but the only one which I think of sufficient importance to call for examination is, whether the plaintiff can maintain the action, inasmuch as the deceased left no father or mother, child, or descendant of a child surviving her.
If the plaintiff’s wife had not died, the defendant would have been liable to respond in damages, for injuring her. (Thomas v. Winchester, 2 Selden, 407;) and if section one of the act of 1847, (Laws of 18471, p. 575,) stood alone, there could be no doubt of the defendant’s liability in an action for damages in respect to the injury to her, notwithstanding her death. In Quin v. Moore, (1 E. P. Smith, 434,) Comstock, J., said: “ The only condition on which the right of the administrator to sue under the statute depends, is the common law right of the injured person to maintain an action if he were living.” This language is certainly comprehensive enough to authorize this action; but it is contended by the defendant’s counsel, inasmuch as there was a mother, who survived her minor child that was killed, in the case of Quin v. Moore, and also in the one cited to sustain the decision in that case, that the language used by Judge Comstock should not control the decision of the case at bar. Mow conceding the question in this case to be undecided, I am of the opinion this action is well brought; and that such an action can be maintained by the personal representative of a deceased person, whose death has been wrongfully caused by the defendant; although such deceased person left no husband or wife, or next of kin surviving, who *43could ever have any legal claim upon such person if living, for services or support. It has not been denied that the language of the first section of the law under Which this action was brought is broad enough to sustain this conclusion; and thus much may be regarded as conceded. But it is insisted that notwithstanding the broad and comprehensive language employed in the first section of that law, the right to maintain . actions under it is restricted to cases where the deceased person leaves a widow or next of kin surviving, who sustains, or may sustain some pecuniary loss by reason of the death of such person. When it is asserted that section two declares “ the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person,” it must be remembered that there may be next of kin to the deceased person who could have no legal claim upon such person, if living, for services or support. The other part of section two, on which more stress is laid by the defendant’s counsel, is, that “ in every such action the jury may give such damages as they shall deem a fair and just compensation, not exceeding five thousand dollars, with reference to the pecuniary injury resulting from such death, to the wife and next of kin of such deceased person.” (See Laws of 1849, p. 388, § 1.) I think this language is merely permissive, when construed with section one, and that it cannot be regarded as restricting the jury, on the question of damages, to the pecuniary injury resulting from the death of the person killed, to the wife and next of kin of such deceased person. The legislature has said the administrator may recover such damages, but it has not declared he shall recover no other damages, as I think it would have done, if it had been the intention of the legislature to limit the right of action to cases where the deceased person leaves a wife or next of kin, who could have a legal claim for services or support upon such deceased person if living.
I am of the opinion the defendant’s motion for a new trial should be deified, with costsj
*44[Delaware General Term, July 6, 1858.Gray, Mason, Balcow and Campbell, Justices.]
Jnstices Gray, Mason and Campbell concurred in the above conclusion, upon the ground that they thought the decision in Quin v. Moore was decisive of the question whether the plaintiff as administrator of his wife could sustain this action.
Motion for a new trial denied, with costs.(a)
In Keller, adm’r &c., v. The New York Central Rail Road Company, decided at the same term, a similar decision was made.. That was an action growing out of the same occurrence which was the foundation of the above action. It was brought by the plaintiff, B. Keller, as administrator of Rachel Keller, his "mother, to recover damages arising from injuries sustained by her on that occasion, by which she was killed. The intestate was a widow, and had no child at the time of her death, under the age of 21 years, or, relative who was dependent upon her. The plaintiff obtained a verdict, for $1700, and the defendant moved for a new trial, on the ground that the intestate left no husband or next of kin who sustained any pecuniary loss by reason of her death. The court denied the motion for a new trial, for the same reasons assigned in the above case. (Opinion by Balcom, J.)