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sequent suit against the indorser, who party to or notified of the first action. had no notice of the first suit. Morris Brown v. Chaney (1846) 1 Ga. 410. v. Lucas (Ind.) supra.

If, in a suit by an indorsee on a A judgment in a suit by an assignee note, the maker successfully mainagainst the maker, whic was success- tains a plea of non est factum, and no fully defended on the ground of pay- notice of the suit is given to the inment, is not admissible as evidence of dorsers, the indorsee, in a suit against the fact in an action by the assignee them, is bound to prove that the suit against his assignor, where the latter against the maker was rightfully dehad no notice of the suit and so cided by evidence other than the recno opportunity of controverting the ord of that suit, it being in such case fact of payment. Maupin v. Compton no more, at least, than prima facie (1813) 3 Bibb (Ky.) 214, and Morgan evidence of the fact. Ewing v. Sills V. Simmons (1830) 3 J. J. Marsh. (1848) 1 Ind. 125. (Ky.) 611.

- where transferrer was given notice of When a note is in judgment against

suit. an indorser, and the indorser pays up

Where, action having been the judgment, and then sues a prior brought by the makers of a note to indorser, a previous judgment in favor

replevin it from a bank to which it of a subsequent holder, either for or against the prior indorser, cannot op

had been sent by an assignee for col

lection, the assignor was notified of erate as an estoppel, or even as evi

the suit and caused an attorney to apdence in the suit against such prior

pear therein and defend it, the assignindorser, as he had no control over

or is privy to the judgment rendered the action brought by the holder and

therein, and bound by it to the same should not be bound by the judgment.

extent as if it had been named as party Barker v. Cassidy (1853) 16 Barb. (N.

to the proceeding, and is estopped Y.) 177.

from thereafter suing on the note. Where no notice is given to an in

Marquardt Sav. Bank v. Sheppleman dorser of a note, by an indorsee, of a suit brought by him against the

(1901) 97 Ill. App. 31.

A verdict in a suit by an indorsee maker, a judgment in favor of the

of a non-negotiable note against the maker upon the merits of the note is

maker, in which a set-off was successprima facie evidence against the indorser; and it rests with him to show

fully asserted, is conclusive against

an indorser who was informed of the that the defense then interposed was

pendency of the suit and advised of invalid. Hagerthy v. Bradford (Ala.)

the defense interposed. Hagerthy v. supra.

Bradford (1846) 9 Ala. 567. In this A judgment in an action brought by

case the court said: “The general the transferee of a note against the maker, in which the latter success

rule is that when a suit is commenced fully maintained the defense of usury,

by a stranger and notice is given to is properly admitted in evidence in an

the warrantor, he is responsible for action by the assignee against his as

the damages recovered and is consignor. White v. Webster (1877) 58

cluded by the verdict. We think the Ind. 233.

same rule must apply when the inA judgment in an action by an in- dorser is notified of the pendency of dorsee against one of the joint makers the suit against the maker or advised of a note, who, claiming to be security of any defense interposed, as with reonly for his comaker, successfully de- spect to the action, he occupies a very fended the suit on the ground that he similar position with a vendor.” had been discharged by indulgence Judgment rendered in an action on given by a former holder of the note a note by a transferee thereof, susto the principal debtor, is not conclu- taining a plea of set-off interposed by sive in an action brought by the in- the maker, is conclusive in a subsedorsee against such former holder, quent action brought by the transwhere such former holder was not a feree against his transferrer to recover for a fraudulent representation present at the time and place set for that there was no set-off to the note, hearing and procured a continuance where it appeared that the transferrer to enable him to obtain testimony to was not only notified of the former sustain the validity of the note, though suit, but was present at the trial and he afterwards refused to have anyaided in sustaining the action. Walk- thing to do with the suit. Carpenter er v. Ferrin (1832) 4 Vt. 523.

v. Pier (1858) 30 Vt. 81, 73 Am. Dec. A judgment in an action by the trans- 288. feree of a promissory note against the A judgment in favor of the maker maker, who successfully defended it of the note in an action brought by an on the ground of a partial failure of indorsee, in which the defense of consideration, is binding on the trans- usury was successfully interposed, is ferrer, who was given notice of the conclusive in a suit brought by such defense. Bullock v. Winter (1851) 10 indorsee against his indorser, who Ga. 214.

was notified of the defense, although A judgment in an action upon a he was not requested to take charge of note by a transferee, in which the the litigation or notified that if he maker successfully maintained a plea should fail to do so he would be held of want of consideration, is conclusive responsible. Drennan v. Bunn (1888) as against a transferrer who was noti- 124 Ill. 175, 7 Am. St. Rep. 354, 16 fied of the pendency of the suit and re- N. E. 100, and Cressey V. Kimmel quested to attend it, and who was (1898) 78 Ill. App. 27. E.S.O.

ESTELLE SIDER, Admrx., etc., of James E. Yates, Deceased, Appt.,

V.
GENERAL ELECTRIC COMPANY et al., Respts.

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(238 N. Y. 64, 143 N. E. 792.) Damages, $ 234

recovery by widow for death effect of death of widow. Damages to be allowed the widow of one killed by another's negligence, where she dies before trial of the action, are to be limited to the pecuniary loss sustained by her until her death.

[See note on this question beginning on page 162.]

APPEAL by plaintiff from an order of the Appellate Division of the Supreme Court, Fourth Department, modifying and affirming an order of a trial term for Niagara County (Brown, J.) setting aside a verdict in her favor and granting a new trial in an action brought to recover damages for alleged wrongful death of plaintiff's decedent. Affirmed.

The facts are stated in the opinion of the court.
Mr. Hamilton Ward for appellant. order of the trial court setting aside

Mr. Richard Moot for respondent the verdict as excessive. Such order General Electric Company.

was unanimously affirmed by the apMr. Franklin D. L. Stowe, with pellate division. The affirmance was Messrs. Dudley, Stowe, & Sawyer, for proper and should stand. respondent Niagara Falls Power Com- Dickens v. New York C. R. Co. 23 pany:

N. Y. 158, 5 Am. Neg. Cas. 61; Pitkin The rule of damage charged the v. New York C. & H. R. R. Co. 94 App. jury was erroneous, and compelled the Div. 31, 87 N. Y. Supp. 906; Cooper v. (238 N. Y. 64, 143 N. E. 792.) Shore Electric Co. 63 N. J. L. 558, 44 was amended to allege her death and Atl. 633; Shawnee v. Cheek, 41 Okla. the making of the will. 227, 51 L.R.A.(N.S.) 672, 137 Pac. 724,

The widow having died before the Ann. Cas. 1915C, 290; 5 Sutherland,

trial of the action, the question Damages, 4th ed. $ 1260; 8 R. C. L.

raised upon this appeal relates to the 755; Wilcox v. Warren Constr. Co.

rule of damage to be applied in such 13 A.L.R. 230, note; Lockwood v. New York, L. E. & W. R. Co. 98 N. Y. 523;

a case. The judge charged the jury Klemm v. New York C. & H. R. R. Co.

as follows: “This plaintiff may re78 Hun, 277, 28 N. Y. Supp. 861; Kemp- cover from the defendants such a ston V. American Mfg. Co. 194 App. sum of money as you jurors say Div. 781, 186 N. Y. Supp. 398; Con- would be fair and just compensation naughton v. Sun Printing & Pub. Asso. for the pecuniary injuries resulting 73 App. Div. 316, 76 N. Y. Supp. from the death of James E. Yates to 755; Wagner v. H. Clausen & Son

the widow, Georgia A. Yates." Brewing Co. 146 App. Div. 70, 130 N.

He declined to charge in the folY. Supp. 584; Predmore v. Consumers' Light & P. Co. 99 App. Div. 551, 91 N.

lowing: "I ask your Honor to Y. Supp. 118; Ingrafia v. Samuels, 71

charge in that regard that the recovApp. Div. 14, 75 N. Y. Supp. 718; ery in this action, if any, can be Houghkirk v. Delaware & H. Canal Co. only as follows: For pecuniary loss 92 N. Y. 219, 44 Am. Rep. 370; Mundt sustained by Mrs. Yates from the v. Glokner, 26 App. Div. 123, 50 N. Y. date of Mr. Yates's death until her Supp. 190.

death; also for the necessary funerCrane, J., delivered the opinion of

al expenses and the pecuniary loss the court:

sustained by Mr. Yates's brothers The facts of this case are fully set

and sister, if any," To the refusal forth in the opinion in Rosebrock v.

of the judge to charge this request, General Electric Co. 236 N. Y. 227,

the defendants took an exception. 140 N. E. 571, a companion case.

After the rendition of a verdict The action is like that of Shamrock by the jury in favor of the plaintiff v. General Electric Co. 204. App: consideration, set aside the verdict

of $21,200, the trial justice, after which the verdict for the plaintiff and granted a new trial unless the was affirmed by this court on the au

plaintiff stipulated within twenty thority of the Rosebrock Case, su

days to reduce the verdict to $2,500.

Upon appeal the appellate division pra. James E. Yates, an employee of

unanimously affirmed this order of the Tonawanda Power Company,

the trial justice, modifying it, howlost his life in an accident at the

ever, to the extent of striking out switch tower of the Niagara Falls

the permission given the plaintiff to Power Company at North Tona- stipulate for a reduction of the verwanda, October 31, 1920. He left

dict. Judgment of affirmance was him surviving a widow, Georgia A.

entered upon this order of the apYates, but no children, and as ad

pellate division. ministratrix she brought this action

The trial justice and the appellate

division were of the opinion that it in her own behalf on December 10,

was error to refuse to charge the re1920. She died March 3, 1921, be

quest as above stated, relating to the fore the action was tried, and

amount and extent Estelle Sider was appointed admin

of the damages to Damages-reistratrix de bonis non of the estate

be recovered owing widow for death of James E. Yates, and as such was to the death of the of widow. substituted as plaintiff before the beneficiary, the widtrial.

ow, Georgia A. Yates, before the Mrs. Yates left a will through trial of the action. We agree with which she attempted to bequeath the them. cause of action. The will was of- It is the claim of the appellant fered in evidence, and the complaint that upon the death of James E.

Yates the cause of action was given death of such father prior to the verfor the benefit of his widow, Georgia dict shall not affect the amount of A. Yates, that this vested in her a damages recoverable. When final right of property, and that the dam- judgment for the plaintiff is renages were to be measured as of the dered, the clerk must add to the sum time of the husband's death. It is so awarded, interest thereupon from said that all subsequent events such the decedent's death, and include it as the death of the beneficiary, in in the judgment." this case the widow, could not in any What was the damage sustained way affect this right of property or by the widow through the death of the amount of the damages to be re- her husband, James E. Yates? He covered. On the other hand, it is was killed October 31, 1920. She claimed by the respondent that the died a little over four months therestatute gives to the widow the dam- after; namely, March 3, 1921. The ages which she actually sustained in damage, the statute says, is the “fair the death of her husband, and that and just compensation for the pewhile she is alive these of necessity cuniary injuries resulting from the must be somewhat speculative; that decedent's death." A wife is entitled is, they would be dependent largely to the support of her husband acupon the duration of her own life, cording to his means and station in and this, of course, would be uncer- life. When the husband is killed, the tain. Where, however, before the jury may consider his income and trial, she had died, the damages were manner of living and the probability at least rendered more certain by of their continuance but for his her death, and would be confined to death. The wife is entitled to such the loss which she had sustained be- sum as the jury thinks will compentween the time of her husband's sate her for the loss of his support. death and that of her own.

The receipt of the pecuniary advanThe statute giving this cause of tages can, from the nature of things, action is $ 1902 of the Code of Civil only continue during the lifetime of Procedure (now § 130 of the Dece- the wife; they necessarily cease updent Estate Law [Consol. Laws, on her death. In death actions the chap. 13]). It reads: "The exec- damages are rendered extremely unutor or administrator duly appoint- certain and speculative by reason of ed in this state,

of a dece- the uncertainty of life itself. How dent who has left him or her surviv- long the husband may have lived, in ing a husband, wife, or next of kin, the opinion of the jury, but for the may maintain an action to recover accident, is determined by his cirdamages for a wrongful act, neglect cumstances and condition, and is reaor default, by which the decedent's soned out with the aid of mortuary death was caused, against a natural tables made up, as we know, from person who, or a corporation which probabilities and experience. The would have been liable to an action same thing applies to the longevity in favor of the decedent by reason of the wife. In her case, however, thereof if death had not ensued." the uncertainty to a large extent is

Section 1904 of the Code (now § rendered certain when, before the 132 of the Decedent Estate Law) trial of the action, she too has ceased provides for amount of recovery. It to live. The income which the jury reads: “The damages awarded to have a right to suppose would conthe plaintiff may be such a sum as tinue if her husband were alive ends the jury

deems to be a fair on the day of her death. There is and just compensation for the pe- no reason in the appellant's contencuniary injuries, resulting from the tion that, upon the death of the husdecedent's death, to the person or band, the widow becomes entitled to persons, for whose benefit the action damages fixed as of that time, subis brought. If the decedent leaves ject to speculation as to her longevsurviving a father and a mother, the ity, where before the day of actual (238 N. Y. 64, 143 N. E. 792.) assessment of damages, to wit, the able to agree with any construction trial, she has died and rendered this which holds that at such moment the speculation unnecessary. The only amount of damages to be recovered suggestion made for such a rule is in behalf of the beneficiary became the fact that in some of the cases the so fixed that it could not be altered right of the widow to recover has by subsequent circumstances, like been referred to as a property right. the death of the next of kin. Re Meekin, 164 N. Y. 145, 51 L.R.A. The consideration of these pecuniary 235, 79 Am. St. Rep. 635, 58 N. E. benefits which might have resulted 50, 8 Am. Neg. Rep. 490. These from the life of the child, and of the words were used to distinguish this damages which therefore flow from right of action from those classes of its death to the parent, must necescases where the cause of the action sarily take into account the probable died with the person. The cause of length of time during which the paraction in the next of kin was re- ent himself might live to enjoy these ferred to as a property right, in or- benefits. Ordinarily such parent is der to give the representative of the alive at the time of the trial, and the next of kin, when the latter had died contingency of his death and of the before trial, a right to recover the resultant termination of all benefits actual damages which he had sus- which he might have derived from tained up to the time of his death. the child's life is so uncertain that In other words, the cause of action any conclusions which a jury may for such damages as were actually reach in reference to such benefits sustained did not die with the pass- are not subject to review and reing out of a widow or next of kin. versal. In this case, however, no

This rule of law has been well de- element of uncertainty in this refined and applied in the case of Pit- spect exists. The father was the kin v. New York C. & H. R. R. Co. next of kin and solely entitled as 94 App. Div. 31, 87 N. Y. Supp. 906, such under the statute to any damwherein the opinion was written by ages which resulted from the death. the chief judge of this court. The He had died before the trial, and reasoning and conclusion we adopt. therefore there was ascertained the In that case a child had been killed, exact period during which he would leaving as his sole next of kin his have been entitled to the benefits of father. Before the action came on the life of the intestate.” for trial the father died. It was held This rule also finds support in the that the recovery was limited to following authorities : Cooper v. such damages as the father had suf- Shore Electric Co. 63 N. J. L. 558, fered up to the time of his death. 44 Atl. 633; Shawnee v. Cheek, 41 (This was before the amendment Okla. 227, at page 256, 51 L.R.A. of $ 132 of the Decedent Estate (N.S.) 672, 137 Pac. 724, Ann. Cas. Law in 1913, chap. 756.) In the 1915C, 290; 5 Sutherland, Damages, opinion it was stated: “It is sug- 4th ed. $ 1260. gested by the counsel, however, in

For the reasons here stated, the his brief, that 'the damages to be order and judgment appealed from recovered become fixed at the time must be affirmed, and judgment abof the death of plaintiff's intestate, solute ordered upon the appeland the subsequent death of the fa- lant's stipulation, with costs in all ther did not alter the question. If courts. this language should be construed as holding that the right to damages in Hiscock, Ch. J., and Cardozo, behalf of the next of kin accrued Pound, McLaughlin, and Lehman, and became fixed at the time of the JJ., concur. death of plaintiff's intestate, we

Andrews, J., not sitting. should, of course, have no difficulty in agreeing with it. But we are un- Ordered accordingly.

34 A.L.R.-11.

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