James McGurty, as Administrator, etc., of George H. McGurty, Deceased, Respondent, v. New Amsterdam Gas Company, Appellant

James McGurty, as Administrator, etc., of George H. McGurty, Deceased, Respondent, v. New Amsterdam Gas Company, Appellant. Second Department, November 28, 1906. Tort — -when father of infant killed by wrongful act entitled to whole recovery — mother cannot contest settlement of action by deceased father. A father of a deceased infant, who left no widow or children, is entitled to the whole proceeds of an action for the death of said infant, caused by negligence, and having settled the action after a dismissal of his complaint ■ upon default, his widow has no standing in the action to. open the settlement or default. Appeal by the defendant, the New Amsterdam Gas Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 2d day of November, 1906, purporting to open a default against the plaintiff, vacating a judgment thereon dismissing the complaint and restoring the case for trial. The complaint is by James McGurty, as administrator, for the death of his infant son by the alleged negligence of the defendant.. The cause was answered ready on the day calendar by both sides on November 21 and 22, 1905, on the .morning call, but when reached for trial on November twenty-second, the plaintiff’s attorney said orally in general terms that he could not go on as he had not been able to procure the attendance of the only witness he had to prove the negligence. The calendar rules required that the excuse be presented by affidavit, and on the call of the calendar while the case was yet on the reserve section. The trial judge refused to postpone and dismissed the case. Thereafter the plaintiff and his attorney agreed to a settlement of the action with defendant’s attorney for the sum of $250, $87.50 of which was to be paid to the plaintiff’s attorney. On November twenty-seventh the plaintiff signed a petition to the surrogate to enlarge his limited letters of administration, executed and delivered a general release of the cause of action and received from the defendant’s attorney his share of the settlement, $162.50, the balance, $87.50, being at the same time paid to his attorney. A stipulation discontinuing the action was at the same time executed and exchanged by the attorneys, and an order was entered thereon next day. The plaintiff died on December 4, 1905, and in September, 1906, his widow made this motion to open the default. She has never been appointed administratrix and is not a party to the action. James M. Seaman, Edwin A. Jones and Albert Van Winkle, for . the appellant. Frank F. Davis, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The order appealed from must be reversed. The decedent left no descendant or widow, and his father was therefore entitled to all that might be recovered in the action (Code Civ. Proc. § 2732, subd. 7; Lipp v. Otis Brothers & Co., 161 N. T. 559). He had a right to settle the action and did so. His widow has no standing to upset such settlement, nor has she any standing at all in this action. The order is reversed and the motion is denied. ' Woodward, Jenks and Bich, JJ., concurred; Hooker, J., not voting. Order reversed, with ten dollars costs and disbursements, and motion denied, without costs.