Cobb v. Harmon. tions dictated by themselves, independent of any legal proceedings; and, under the rule of liability to which I have referred their bond must be deemed forfeited, and they have become chargeable with the legal consequences of such forfeiture. In the case of Harmony v. Bingham (supra), it was held by this court that a party who failed to perform a contract for the transportation of merchandise from New York, and the delivery thereof at Independence, in Missouri, within twenty-six days, in consequence of a detention occasioned by an unusual freshet, which rendered a public canal, upon which the goods were intended to be transported a part of the distance, impassable, was nevertheless liable. The extent of the rule is there discussed, and the case of Beebee v. Johnsm (supra) was cited with approbation. In that it was decided that the defendant, who had covenanted that he would perfect in England a patent right granted in this country, so as to ensure to the plaintiff the exclusive right of vending the article patented in the provinces of Upper and Lower Canada, was not excused from performance, although it appeared that the power of granting exclusive privileges of this kind appertained not to the mother country, but to the provinces, and that they were never granted, except to the subjects of Great Britain and residents of the provinces, and could not be granted to either the plaintiff or the defendant, as both were citizens of this country. Chief Justice NELSON, in giving the opinion of the court, says: "If the covenant be within the range of possibility, however absurd or improbable the idea of the execution of it may be, it will be upheld; as where one covenants, it shall rain to-morrow, or that the Pope shall be at Westminister on a certain day; to bring the case within the rule of dispensation it must appear that the thing to be done cannot by any means be accomplished; for if it is only improbable or out of the power of the obligor, it is not in law deemed impossible." He then said: "The fulfillment in this case cannot be considered an impossibility within the above exposition of the rule, because, for anything we know to the contrary, the exclusive right to make, use and vend the machine in the Canadas, might have been Cobb v. Harmon. secured in England by act of Parliament or otherwise; at least there is nothing in all this necessarily impossible." There is no difference in principle between those cases and the one under consideration. I have so far considered the case upon the assumption that the application before the County Judge was necessarily terminated by his failure to attend at the time and place designated for hearing it, and that the proceedings could not be continued before another officer; but such is not the fact. It is expressly provided, by section 51, of 2 Revised Statutes, page 284, under the title "general provisions concerning courts of record, and the powers and duties of certain judicial officers," that, "in case of the death, sickness, resignation, removal from office, absence from the county of his residence or other disability of any officer before whom any special proceedings authorized by any statute may have been commenced, and where no express provision is made by law for the continuance of such proceedings, the same may be continued by the successor in office of such officer, or by any other officer residing in the same county, who might have originally instituted such proceedings; or if there be no such officer in the same county, then by the nearest public officer in any other county who might have originally had jurisdiction of the subject matter of such proceedings, if such matter had occurred or existed in his own county." It is conceded that there was no other officer, residing in the same county in which the County Judge before whom these proceedings were instituted resided, who was competent to act; and there can consequently be no doubt (as there was sufficient time for that purpose left) that they might have been continued. before the nearest County Judge or any other officer authorized to act in such case in any other county, unless an express provision was otherwise made by law for the continuance thereof. It is insisted, on behalf of the appellants, that the act of 1831, above referred to, makes such provision by section 19. That section declares that the general provisions applicable to the proceedings under the several articles of the first title, of chap Cobb v. Harmon. ter five, of the second part of the Revised Statutes, and which are contained in the seventh article of the said title, shall be deemed to apply to proceedings in said act directed, so far as the same are not inconsistent with the provisions of the said act itself, and it is said that a mode is provided by those provisions, to use the language of appellant's counsel, for "a continuance of the proceedings by the successor in office, or by any other officer in the same county who might have originally instituted such proceedings (§ 5), and if there be no competent officer in the same county, then any judge of the County Courts may attend and adjourn the proceedings to the next Court of Common Pleas, to be held in the same county, and the said court shall proceed therein." (§ 6.) Assuming that those sections were, by the effect of said section 19, originally applicable to a case like this, they cannot apply now, for the reason, that by a change in the organization of the County Courts since the passage of those provi sions and that act, there is, as is well said by the counsel, "but one judge of the County Courts in each county." There was consequently no competent officer or judge within the meaning of sections 5 and 6, by whom the proceedings could have been continued or adjourned, and as it is not claimed that any other special provision applicable to the case exists, it follows that the general statute above cited applies, and that the proceedings might have been continued under that. But a more decisive and effective reason, for holding that this statute does so apply, is that the sections 5 and 6 referred to do not contain such general provisions as are contemplated by said section 19. They relate only to specific proceedings commenced under the first, second, third, fourth and fifth articles of that title, and have no application to the sixth article nor to any other proceedings. The referee therefore correctly decided that the omission of Herrick to proceed under that statute was without legal excuse, and that there was a want of due diligence on his part. The appellants' counsel has raised and discussed another point which remains to be noticed. It is that "the death of Cobb v. Harmon. Cobb, the sole prosecuting creditor, after the service on him of Herrick's petition and notice, and before the time of prosecuting it had arrived, abated not only the proceeding commenced by the service of Herrick's petition and notice, but also the proceeding which Cobb commenced against him by warrant, which was not then finally determined." That question has been so ably and well discussed by the referee, that it is deemed unnecessary to consider it at length. It is sufficient to say that the proceedings as commenced by warrant, were terminated by the adjudication made thereon by the judge, and the subsequent execution of the bond given by the defendants. From that time Herrick became the actor. The law gave him the right to make application for the relief contemplated by the petition and notice, and prescribed the mode in which it should be made. His action was entirely independent of and beyond the control of Cobb, until the appearance of the parties before the judge. His death certainly did not prevent the application; and that application, as has been shown by the referee, was not such a proceeding as could be abated by, or in consequence of, such death. It was in the nature of a provisional remedy after final judgment in a suit, and not a new suit. The authorities cited, to show that at common law, the death of a sole plaintiff before final judgment abated the suit, are inapplicable to such a proceeding. The judgment must therefore be affirmed, with costs. JAMES, J., concurred; COMSTOCK, Ch. J., DENIO and HOYT, Js., not agreeing that the bond was forfeited had there been a failure in the legal arrangements or officers necessary to enable the debtor to prosecute his application, were for affirmance on the ground secondly discussed by LoTT, J.; SELDEN and DAVIES, Js., dissented, and MASON, J., expressed no opinion. Judgment affirmed. Dickins. The New York Central Railroad Company. 23 158 L164 150 DICKINS v. THE NEW YORK CENTRAL RAILROAD COMPANY. Where a husband brings an action as administrator of his wife, for the damages resulting from her death by the negligence of the defendant, he can recover only for the pecuniary injury sustained by her next of kin. The value of her services to him does not enter into the estimate of damages and evidence thereof is inadmissible. APPEAL from the Supreme Court. Action under the statute by the administrator of Sarah Dickins, deceased, for the damages sustained by her next of kin from the causing of her death through the negligence of the defendant's servants. The complaint averred, that the plaintiff was the husband of Mrs. Dickins, and alleged damages from being deprived of her services and assistance in the management of his domestic affairs. It appeared upon the trial that the deceased left no children, father nor mother. Her next of kin were two brothers and a married sister. Evidence was received, under exception by the defendant, tending to prove that the services of the deceased in the superintendence and management of the dairy upon her husband's farm, on which there were thirty-seven cows, were quite valuable. The plaintiff had a verdict and judgment, which having been affirmed at general term in the sixth district, the defendant appealed to this court. Sidney T. Fairchild, for the appellant. Ira Harris, for the respondent. DENIO, J. The only question which we have found it necessary to consider in this case, is whether the plaintiff was entitled to recover damages on account of the pecuniary injuries resulting to him from the death of his wife. This question was raised on the trial by the objection made to the evidence by which the nature of her services in the plaintiff's business was |