sequent suit against the indorser, who had no notice of the first suit. Morris v. Lucas (Ind.) supra.

A judgment in a suit by an assignee against the maker, which was successfully defended on the ground of payment, is not admissible as evidence of the fact in an action by the assignee against his assignor, where the latter had no notice of the suit and so no opportunity of controverting the fact of payment. Maupin v. Compton (1813) 3 Bibb (Ky.) 214, and Morgan v. Simmons (1830) 3 J. J. Marsh. (Ky.) 611.

When a note is in judgment against an indorser, and the indorser pays up the judgment, and then sues a prior indorser, a previous judgment in favor of a subsequent holder, either for or against the prior indorser, cannot operate as an estoppel, or even as evidence in the suit against such prior indorser, as he had no control over the action brought by the holder and should not be bound by the judgment. Barker v. Cassidy (1853) 16 Barb. (N. Y.) 177.

Where no notice is given to an indorser of a note, by an indorsee, of a suit brought by him against the maker, a judgment in favor of the maker upon the merits of the note is prima facie evidence against the indorser; and it rests with him to show that the defense then interposed was invalid. Hagerthy v. Bradford (Ala.) supra.

A judgment in an action brought by the transferee of a note against the maker, in which the latter successfully maintained the defense of usury, is properly admitted in evidence in an action by the assignee against his assignor. White v. Webster (1877) 58 Ind. 233.

A judgment in an action by an indorsee against one of the joint makers of a note, who, claiming to be security only for his comaker, successfully defended the suit on the ground that he had been discharged by indulgence given by a former holder of the note to the principal debtor, is not conclusive in an action brought by the indorsee against such former holder, where such former holder was not a

party to or notified of the first action. Brown v. Chaney (1846) 1 Ga. 410.

If, in a suit by an indorsee on a note, the maker successfully maintains a plea of non est factum, and no notice of the suit is given to the indorsers, the indorsee, in a suit against them, is bound to prove that the suit against the maker was rightfully decided by evidence other than the record of that suit, it being in such case no more, at least, than prima facie evidence of the fact. Ewing v. Sills (1848) 1 Ind. 125.

where transferrer was given notice of suit.

Where, an action having been brought by the makers of a note to replevin it from a bank to which it had been sent by an assignee for collection, the assignor was notified of the suit and caused an attorney to appear therein and defend it, the assignor is privy to the judgment rendered therein, and bound by it to the same extent as if it had been named as party to the proceeding, and is estopped from thereafter suing on the note. Marquardt Sav. Bank v. Sheppleman (1901) 97 Ill. App. 31.

A verdict in a suit by an indorsee of a non-negotiable note against the maker, in which a set-off was successfully asserted, is conclusive against an indorser who was informed of the pendency of the suit and advised of the defense interposed. Hagerthy v. Bradford (1846) 9 Ala. 567. In this case the court said: "The general rule is that when a suit is commenced by a stranger and notice is given to the warrantor, he is responsible for the damages recovered and is concluded by the verdict. We think the same rule must apply when the indorser is notified of the pendency of the suit against the maker or advised of any defense interposed, as with respect to the action, he occupies a very similar position with a vendor."

Judgment rendered in an action on a note by a transferee thereof, sustaining a plea of set-off interposed by the maker, is conclusive in a subsequent action brought by the transferee against his transferrer to re

cover for a fraudulent representation that there was no set-off to the note, where it appeared that the transferrer was not only notified of the former 'suit, but was present at the trial and aided in sustaining the action. Walker v. Ferrin (1832) 4 Vt. 523.

A judgment in an action by the transferee of a promissory note against the maker, who successfully defended it on the ground of a partial failure of consideration, is binding on the transferrer, who was given notice of the defense. Bullock v. Winter (1851) 10 Ga. 214.

A judgment in an action upon a note by a transferee, in which the maker successfully maintained a plea of want of consideration, is conclusive as against a transferrer who was notified of the pendency of the suit and requested to attend it, and who was

present at the time and place set for hearing and procured a continuance to enable him to obtain testimony to sustain the validity of the note, though he afterwards refused to have anything to do with the suit. Carpenter v. Pier (1858) 30 Vt. 81, 73 Am. Dec. 288.

A judgment in favor of the maker of the note in an action brought by an indorsee, in which the defense of usury was successfully interposed, is conclusive in a suit brought by such indorsee against his indorser, who was notified of the defense, although he was not requested to take charge of the litigation or notified that if he should fail to do so he would be held responsible. Drennan v. Bunn (1888) 124 Ill. 175, 7 Am. St. Rep. 354, 16 N. E. 100, and Cressey v. Kimmel (1898) 78 Ill. App. 27. E. S. O.

Mr. Hamilton Ward for appellant. Mr. Richard Moot for respondent General Electric Company.

Mr. Franklin D. L. Stowe, with Messrs. Dudley, Stowe, & Sawyer, for respondent Niagara Falls Power Company:

The rule of damage charged the jury was erroneous, and compelled the

order of the trial court setting aside the verdict as excessive. Such order was unanimously affirmed by the appellate division. The affirmance was proper and should stand.

Dickens v. New York C. R. Co. 23 N. Y. 158, 5 Am. Neg. Cas. 61; Pitkin v. New York C. & H. R. R. Co. 94 App. Div. 31, 87 N. Y. Supp. 906; Cooper v.

Yates the cause of action was given for the benefit of his widow, Georgia A. Yates, that this vested in her a right of property, and that the damages were to be measured as of the time of the husband's death. It is said that all subsequent events such as the death of the beneficiary, in this case the widow, could not in any way affect this right of property or the amount of the damages to be recovered. On the other hand, it is claimed by the respondent that the statute gives to the widow the damages which she actually sustained in the death of her husband, and that while she is alive these of necessity must be somewhat speculative; that is, they would be dependent largely upon the duration of her own life, and this, of course, would be uncertain. Where, however, before the trial, she had died, the damages were at least rendered more certain by her death, and would be confined to the loss which she had sustained between the time of her husband's death and that of her own.

The statute giving this cause of action is § 1902 of the Code of Civil Procedure (now § 130 of the Decedent Estate Law [Consol. Laws, chap. 13]). It reads: "The executor or administrator duly appointed in this state, of a decedent who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued."

Section 1904 of the Code (now § 132 of the Decedent Estate Law) provides for amount of recovery. It reads: "The damages awarded to the plaintiff may be such a sum as the jury . deems to be a fair and just compensation for the pecuniary injuries, resulting from the decedent's death, to the person or persons, for whose benefit the action is brought. If the decedent leaves surviving a father and a mother, the

death of such father prior to the verdict shall not affect the amount of damages recoverable. When final judgment for the plaintiff is rendered, the clerk must add to the sum so awarded, interest thereupon from the decedent's death, and include it in the judgment."

What was the damage sustained by the widow through the death of her husband, James E. Yates? He was killed October 31, 1920. She died a little over four months thereafter; namely, March 3, 1921. The damage, the statute says, is the "fair and just compensation for the pecuniary injuries resulting from the decedent's death." A wife is entitled to the support of her husband according to his means and station in life. When the husband is killed, the jury may consider his income and manner of living and the probability of their continuance but for his death. The wife is entitled to such sum as the jury thinks will compensate her for the loss of his support. The receipt of the pecuniary advantages can, from the nature of things, only continue during the lifetime of the wife; they necessarily cease upon her death. In death actions the damages are rendered extremely uncertain and speculative by reason of the uncertainty of life itself. How long the husband may have lived, in the opinion of the jury, but for the accident, is determined by his circumstances and condition, and is reasoned out with the aid of mortuary tables made up, as we know, from probabilities and experience.

The

same thing applies to the longevity of the wife. In her case, however, the uncertainty to a large extent is rendered certain when, before the trial of the action, she too has ceased to live. The income which the jury have a right to suppose would continue if her husband were alive ends on the day of her death. There is no reason in the appellant's contention that, upon the death of the husband, the widow becomes entitled to damages fixed as of that time, subject to speculation as to her longevity, where before the day of actual

assessment of damages, to wit, the trial, she has died and rendered this speculation unnecessary. The only suggestion made for such a rule is the fact that in some of the cases the right of the widow to recover has been referred to as a property right. Re Meekin, 164 N. Y. 145, 51 L.R.A. 235, 79 Am. St. Rep. 635, 58 N. E. 50, 8 Am. Neg. Rep. 490. These words were used to distinguish this right of action from those classes of cases where the cause of the action died with the person. The cause of action in the next of kin was referred to as a property right, in order to give the representative of the next of kin, when the latter had died before trial, a right to recover the actual damages which he had sustained up to the time of his death. In other words, the cause of action for such damages as were actually sustained did not die with the passing out of a widow or next of kin.

This rule of law has been well defined and applied in the case of Pitkin v. New York C. & H. R. R. Co. 94 App. Div. 31, 87 N. Y. Supp. 906, wherein the opinion was written by the chief judge of this court. The reasoning and conclusion we adopt. In that case a child had been killed, leaving as his sole next of kin his father. Before the action came on for trial the father died. It was held that the recovery was limited to such damages as the father had suffered up to the time of his death. (This was before the amendment of 132 of the Decedent Estate Law in 1913, chap. 756.) In the opinion it was stated: "It is suggested by the counsel, however, in his brief, that 'the damages to be recovered become fixed at the time of the death of plaintiff's intestate, and the subsequent death of the father did not alter the question.' If this language should be construed as holding that the right to damages in behalf of the next of kin accrued and became fixed at the time of the death of plaintiff's intestate, we should, of course, have no difficulty in agreeing with it. But we are un34 A.L.R.-11.

able to agree with any construction which holds that at such moment the amount of damages to be recovered in behalf of the beneficiary became so fixed that it could not be altered by subsequent circumstances, like the death of the next of kin.. The consideration of these pecuniary benefits which might have resulted from the life of the child, and of the damages which therefore flow from its death to the parent, must necessarily take into account the probable length of time during which the parent himself might live to enjoy these benefits. Ordinarily such parent is alive at the time of the trial, and the contingency of his death and of the resultant termination of all benefits which he might have derived from the child's life is so uncertain that any conclusions which a jury may reach in reference to such benefits are not subject to review and reversal. In this case, however, no element of uncertainty in this respect exists. The father was the next of kin and solely entitled as such under the statute to any damages which resulted from the death. He had died before the trial, and therefore there was ascertained the exact period during which he would have been entitled to the benefits of the life of the intestate."

This rule also finds support in the following authorities: Cooper v. Shore Electric Co. 63 N. J. L. 558, 44 Atl. 633; Shawnee v. Cheek, 41 Okla. 227, at page 256, 51 L.R.A. (N.S.) 672, 137 Pac. 724, Ann. Cas. 1915C, 290; 5 Sutherland, Damages, 4th ed. § 1260.

For the reasons here stated, the order and judgment appealed from must be affirmed, and judgment absolute ordered upon the appellant's stipulation, with costs in all courts.

Hiscock, Ch. J., and Cardozo, Pound, McLaughlin, and Lehman, JJ., concur.

Andrews, J., not sitting.
Ordered accordingly.