Opinion
February 21, 1961
Order, entered on July 21, 1960, granting leave to serve an amended complaint, unanimously modified, in the exercise of discretion, with $20 costs and disbursements to the appellant, so as to deny leave to amend the complaint to the extent of adding a cause of action for wrongful death, with leave, however, to move to serve a supplemental or amended complaint upon proper and sufficient papers. Enlargement of a complaint in a personal injury action so as to include a cause of action for wrongful death, where such death occurs prior to determination of the action, may be made by the representative of the deceased where such death "is due to the injury" (Decedent Estate Law, § 120). In seeking such enlargement a competent showing should be made causally relating the accident with the subsequent death ( Heuer v. New York Cent. R.R. Co., 2 A.D.2d 681, Bedarf v. Rosenbaum, 286 App. Div. 1103). The papers submitted on this application are devoid of any competent proof of such relationship. Appeal from order entered September 26, 1960, denying defendant's motion to resettle the order dated July 21, 1960, unanimously dismissed, having become academic by virtue of the decision of this court decided simultaneously herewith.
Concur — Breitel, J.P., Rabin, McNally, Stevens and Eager, JJ.