Per Curiam.
This action is brought by the plaintiff as administrator under the provisions of section 1902 of the Code of Civil Procedure to recover damages for the death of the plaintiff's son, occasioned as alleged by the defendant's negligence. The plaintiff is the sole beneficiary under the statute.
The court, at the defendant's request, charged the jury that the law "does not authorize a recovery where the sole beneficiary is equally guilty with the defendant in bringing about the death for which damages are sought to be recovered." To this charge the plaintiff duly excepted, and the exception presents error for which the judgment must be reversed. ( McKay v. Syracuse R.T. Ry. Co., 208 N.Y. 359, 362.)
The defendant in the action has also made a motion to dismiss the appeal, or for certain other relief in the alternative, which motion should be denied.
WILLARD BARTLETT, Ch. J., WERNER, HISCOCK, COLLIN, CUDDEBACK, HOGAN and CARDOZO, JJ., concur.
Judgment reversed and a new trial granted, with costs to abide the event; motion to dismiss appeal denied, with ten dollars costs.