#### William C. Hartray, Administrator, Appellee, v. Chicago Railways Company, Appellant.

Gen. No. 23,791.

(Not to be reported in full.)

Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.

Heard in this court at the October term, 1917.

Reversed and judgment here.

Opinion filed April 29, 1918.

Rehearing denied May 13, 1918.

Statement of the Case.

Action by William C. Hartray, administrator of the estate of Frank Jagielski, deceased, plaintiff, against *383Chicago Railways Company, defendant, to recover for the death of plaintiff’s intestate which was alleged to have been caused by the negligent operation of defendant’s street cars. From a judgment for plaintiff for $7,500, defendant appeals.

Abstract of the Decisión.

1. Death, § 36 * —necessity of pleading bringing of action for within >one year. The statutory provision (J. & A. if 7214) that an action to recover for a death shall be commenced within one year after the death is not a statute of limitations, but is a condition annexed to the right of action given by the statute forming a part of the right itself, and the bringing of the action within the prescribed time is an essential fact which must appear from the declaration.

2. Pleading, § 50*—when declaration does not state cause of action. A declaration which fails to state a fact, the existence of which is necessary to entitle plaintiff to recover, does not state a cause of action.

Weymouth Kirkland and Charles LeRoy Brown,t for appellant; John R. Guilliams, of counsel.

C. Helmer Johnson, for appellee; James D. Power, of counsel.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice MoSurely

delivered the opinion of the court.