Wetmore v. Wetmore. remedy' rather than precedent that courts will seek in considering whether any or what remedy may be had in the administration of justice." In the case of Miller v. Miller (1 Abb. N. C. 30), Mr. Justice BARRETT clearly intimates that, in his opinion, a court of equity has power to enforce such a judgment, not treating the wife and children as mere judgment. creditors. And in his opinion I fully concur. The fact that the fund, the income of which is sought to be reached by this action, is held by a trustee, and that it is to a court of equity that any one seeking to enforce a trust must resort, gives to the court, as the only tribunal that can enforce this judgment, jurisdiction. The court is not asked to interfere in any way with the trust, or to do any act that would tend to destroy it. It does not anticipate the income from the trust fund, but simply takes hold of the interest of the defendant, W. B. Wetmore, as it accrues, and provides that that interest shall be applied to the payment of the obligation of said Wetmore as long as he refuses to comply with the judgment of the court. I think, therefore, that the plaintiff is entitled to a decree adjudging that the accrued income in the hands. of the trustee be applied to the payment of the amount due to the plaintiff from William B. Wetmore under the judgment of divorce, and directing the trustee to apply such income in the future, as it accrues, to the satisfaction of that judgment. The decision and judgment to be settled on notice. Stuber v. McEntee. STUBER v. MCENTEE. N. Y. Court of Appeals; April, 1894. [Reversing 61 Super. Ct. 338.] 1. Death.] An action for damages for negligence or wrongful act causing death is wholly statutory. 2. The same. The right of action cannot be barred by release from, or payment to, a person who does not at the time have authority to bring an action, or in a legal sense represent the cause of action. 3. The same.] A compromise of such a claim made by a person having no present interest, who receives payment and gives a release, is not a bar to an action by the same person brought in his representative capacity after he has been appointed administrator.* 4. Executors and administrators.] The cases holding that a payment of a debt to one who afterward receives letters, protects the payer, do not hold that a stranger may compromise for the estate with the effect to bind it, if he afterward receives letters. 5. The same.] It seems, that the fact of such payment and its application is competent evidence in mitigation of damages in such an action. 6. Questions of law and fact.] If defendant, in an action for causing the death of his servant, killed by the caving in of an excavation, made the excavation for the deceased to work in, or if. having seen its condition, he directed the servant to work in it, the servant, in doing the work, cannot be regarded as a matter of law as having been guilty of contributory negligence, but it is a question for the jury within the doctrine of Kranz v. Long Island R. R. Co., 123 N. Y. 1. 7. Trials; dismissal of the complaint.] In an action for causing the death of plaintiff's intestate, it was shown that defendant was engaged in the plumbing business; that the deceased was his apprentice in his employment; and that he was killed when actually engaged in plumbing work in an excavation.-Held, that in absence of other proof or explanation, the evidence was *For a note on compromises by trustees and other representative parties, see 5 Abb. N. C. 346. Stuber v. McEntee. sufficient to justify an inference that the excavation was the place which the master furnished the servant to work in, and that it was error to non-suit for want of evidence, that the deceased was directed by the defendant to work in the excavation. 8. Pleading. The answer to a complaint, alleging that plaintiff's intestate had been directed by defendant "to go down into and do certain work in an excavation which defendant had caused to be made in a specified place," denied that defendant had directed deceased "to go down and do work in an excavation which defendant had caused to be made in the specified place.-Held, that such denial was a species of negative pregnant, and could not be regarded, on appeal, for the purpose of sustaining a non-suit on the ground that there was no evidence that defendant had directed deceased to go into the excavation, as having raised an issue as to whether defendant had so directed; especially as other portions of the answer assumed the fact to be so, and the trial court did not grant the non-suit on such ground. Appeal by plaintiff from a judgment of the General Term of the Superior Court of New York City, affirming a judgment entered upon the dismissal of the complaint at a trial before a jury; and also affirm.ing an order denying plaintiff's motion for a new trial. The action was brought by Herman Stuber and another, as administrators of William Stuber, deceased, against James D. McEntee to recover damages for the death of plaintiffs' intestate caused by the negligence of defendant. The complaint in substance alleged that the deceased was an employee of the defendant, a plumber, and at defendant's direction went down into an excavation in West 116th Street in the city of New York, to do certain work; that the excavation had not been boarded up, and that the sides caved in, thereby causing the death of plaintiffs' intestate. As a defense it was shown, that the defendant had paid Mr. Krause, one of the administrators, before his appointment as such, the sum of $400, and took the following Stuber v. McEntee. receipt: "This certifies that Mr. McEntee paid this day to me $400, being payment for all expenses whatsoever, caused by the untimely death of William Stuber, a plumber's assistant, in the employ of Mr. McEntee. Further, that I shall have no further claim whatsoever against Mr. McEntee." The trial court dismissed the complaint, holding that where a servant, without any express direction from the master, or any assurance of safety by him, enters an excavation, the dangers of which are apparent, and consequently as well known to the servant as they would have been to the master, had he been present, the servant must be regarded in doing the imprudent act, as having assumed the consequent dangers; and also holding that the payment to Krause, upon his subsequent appointment as one of the administrators, operated as a payment to the administrators. [Reported in 61 Super. Ct. 338.] The General Term affirmed the judgment for defendant on the opinion of the trial judge. A. Edward Woodruff, for appellants. Thomas C. Ennever, for respondent. O'BRIEN, J.-The plaintiffs' intestate, a young man. about 18 years old, was killed about May 12, 1890, while working in a hole or trench about thirteen feet deep and four or five feet square, by the caving in of the earth and stone which formed the wall of the excavation. The defendant is a plumber and the deceased was his apprentice. The plaintiffs sought to maintain this action upon the allegation that the death was the result of negligence on the part of the defendant in not properly shoring up or supporting the walls of the excavation where the deceased was at work. The trial resulted in a non-suit. It was shown in behalf of the defendant that after the Stuber v. McEntee. death he paid to one of the plaintiffs in this action, a brother-in-law of the young man, the sum of $400, which was used by the family to pay the funeral expenses and the cost of a lot in the cemetery and to purchase a gravestone to mark the burial place. The plaintiff who received the money was not then, but subsequently was appointed, one of the administrators of the deceased. He gave a receipt for the money to the defendant, in which it was stated that the payment was for all expenses caused by the untimely death of the young man, and "further, that I shall have no further claim whatsoever against Mr. McEntee." In deciding the motion for a non-suit, the learned trial judge assumed that a case of negligence on the part of the defendant, in omitting to shore up or support the excavation, was shown, but granted the motion upon two grounds: (1) That the deceased was guilty of contributory negligence. (2) That the receipt for the payment of the $400 was a settlement of the claim and a bar to the action.. Actions for damages by reason of injuries resulting in death were unknown to the common law, and are founded wholly upon the statute. The cause of action is no part of the assets of the estate of the deceased. The statutory liability has no existence in his lifetime and accrues only by reason of his death. It is not subject to the payment. of the debts of the deceased, nor to the ordinary rules applicable to the settlement and administration of the estates of deceased persons (Code Civ. Pro., § 1902, 1905). The damages are not general assets of an estate of a deceased person in the hands of the executor or administrator and subject to their control, but are exclusively for the benefit of the decedent's husband or wife and next of kin. The claim, before suit, cannot be barred or released except by some person who has authority to bring the action at the time, and who, in a legal sense, represents |