Art. 14. Action by Personal Representative to Recover for Death by Wrongful Act. Div. 317, 79 N. Y. Supp. 1004, the case is reported upon third trial, the jury having again found in favor of plaintiff. At page 320 of the opinion it is said that as an original proposition there is very much doubt whether the corporation had power to make a contract of that character, but holds that the law was settled by the decision in 39 App. Div. 624, supra, and is now the law of the case, citing Downes v. Harper Hospital, 101 Mich. 555; Gooch v. Association for Relief of Aged Females, 109 Mass. 558; Benton v. Trustees of Boston City Hospital, 140 Mass. 13; Perry v. House of Refuge, 63 Md. 20; Powers v. Massachusetts Homeopathic Hospital, 101 Fed. 896.

In Collins v. New York Post-Graduate Medical School, 59 App. Div. 63, at page 66, 69 N. Y. Supp. 106, of the opinion it is said that however opinions may differ on the question of the policy of exempting charitable institutions from the ordinary rule of respondeat superior, the law is too well settled in this State to permit a recovery against the institutions for the wrong committed by the surgeon who operates upon a plaintiff gratuitously, citing authorities in this and other jurisdictions.

Corbett v. St. Vincent's Industrial School, 79 App. Div. 334, 79 N. Y. Supp. 369, collates the authorities with reference to liability of institutions of this character and arrives at the conclusion that since the State is not liable for the injury sustained by an inmate of any of its prisons, reformatories, or other institutions, which is the result of negligence, an institution, such as is the defendant in that case, should not be held liable for injuries sustained through negligence by persons committed to its custody.

ARTICLE XIV.

ACTION BY PERSONAL REPRESENTATIVE TO RECOVER FOR DEATH BY WRONGFUL ACT.

Independent of statutory provisions no action lies for injury. which results in death. Buswell on Law of Personal Injuries, § 15, citing Parker v. Bolton, 1 Campb. 493, in which Lord Ellenborough laid down the proposition that "In a civil court the death of a human being could not be complained of as an injury." Tiffany on Death by Wrongful Act, §§ 2-15, collates the au thorities on this subject.

It is said in Insurance Co. v. Brame, 95 U. S. 754, that the

Art. 14. Action by Personal Representative to Recover for Death by Wrongful Act. authorities are so numerous and so uniform to the proposition that by the common law no civil action lies for an injury which results in death, that it is impossible to speak of it as a proposition open to question. Mr. Justice Hunt adds, that it has been so decided in many cases in the English courts, and in many of the State courts, and no deliberate, well-considered decision to the contrary is to be found. Such a recovery was had before the statute in Ford v. Monroe, 20 Wend. 211, but the point that the action would not lie does not seem to have been made. It was not in any event passed upon or noticed by the court, and it is said by Chief Justice Waite, in "The Harrisburg," 119 U. S. 202, that if ever an authority for such an action, it was substantially overruled in Greene v. Hudson River R. R. Co., 2 Keyes, 294, 2 Abb. Dec. 277, which holds explicitly that, in the absence of statutory provision therefor, such an action will not lie, citing Whitford v. Panama R. R. Co., 23 N. Y. 476, where it is said that Ford v. Monroe was disapproved of in Pack v. The Mayor, 3 N. Y. 493.

Actions for damages by reason of injuries resulting in death were unknown to the common law and are founded wholly upon the statute. Stuber v. McEntee, 142 N. Y. 200.

A cause of action to recover damages for a death caused by defendant's negligence is for a tort; it exists only by virtue of the statute and is based entirely upon negligence and tortious conduct of the defendants. Robinson v. Oceanic Steam Navigation Co., 112 N. Y. 315.

The right of action against a person causing the death of another was first given in England, by what is known as Lord Campbell's Act, entitled "An act for compensating the families of persons killed by accident," passed in 1846, which seems to have already been the law of Scotland. Holland's Jurisprudence, 153. Lord Campbell's Act was followed in this State by chapter 450, Laws of 1847, giving the first statutory remedy in this State which was amended in 1849, chapter 256, by limiting the recovery to $5,000; in 1870, chapter 78, by providing for addition of interest to the recovery. By amendment to the Constitution, 1894, article I, section 18, the amount of damages recoverable in such action cannot be restricted by law. The statutory provision became part of the Code of Procedure in the Throop Revision, 1902, etc., by which the right of action is given for wrongful act, neglect, or default, by which death of decedent, leav ing husband, wife, or next of kin, has been caused, against the

Art. 15. Effect of Death of Party Plaintiff or Defendant.

person or corporation which would have been liable for injury if death had not ensued. Provisions are made for the distribution of any fund which may arise in the action. It is held that this action did not transfer a right of action from the decedent to the representative of the deceased party, but gives a wholly new right of action. Black v. Midland R. R. Co., 8 Q. B. 931; Littlewood v. Mayor, 89 N. Y. 24.

Distinguishing features of the action are that it may be maintained whenever death is caused by negligence such as would, if death had not ensued, have entitled the party injured to maintain an action; that it is for the exclusive benefit of persons mentioned in the statute, and members of the family of the deceased, and that the damages recoverable are such as result to the beneficiary from the death. Tiffany on Death by Wrongful Act, § 22.

The right of action given by section 1902 is to recover for damages for wrongs done to the property rights or interest of the beneficiaries thereof and not for injuries to the person of the decedent, and, therefore, is a property right which is not affected by the beneficiary's death but becomes a part of his estate. Matter of Meekin, 164 N. Y. 145.

The rule that plaintiff cannot recover if the party injured in any degree contributes to the injury does not apply to an action for injury caused by assault made by the defendant resulting in death. An act of plaintiff, however slight, which excites the defendant to commit an assault, however violent, will not prevent a recovery for such assault by the plaintiff's representative. Kain v. Larkin, 56 Hun, 79, 9 N. Y. Supp. 89.

The rules relating to this cause of action belong rather to a consideration of the law of negligence, which is the basis of the action, than to a discussion as to the rights of parties, beyond the general principles here stated.

ARTICLE XV.

EFFECT OF DEATH OF PARTY PLAINTIFF OR DEFENDANT. The common-law rule was actio moritur cum persona, the right of action for tort is put an end to by the death of either party, even if an action has been commenced in his lifetime. Pollock, 71, citing case from Year-Book.

Art. 15. Effect of Death of Party Plaintiff or Defendant.

Bigelow on Torts, § 107, says with reference to the rule that actions for tort did not survive the death of plaintiff or defendant at common law, that both the origin and justification of this rule are matters of doubt, but no common-law rule has been more steadily maintained, except as statute law affected it. Citing dictum by Newton, Ch. J., from Year-Book, that "if one doth a trespass to me and dieth, the action is dead also, because it should be inconvenient to recover against one who was not party to the wrong."

By the common law, causes of action classed as ex delicto did not survive the death of the person injured, nor that of the wrongdoer; neither were they assignable. One of the reasons upon which this rule, that they were not assignable, was based, was, that the title to a cause of action could not vest in a person who could not prosecute the same after the death of the party who suffered the injury. The injustice of the rule was manifest as to a class of actions founded in tort, as was long ago recognized in England, and its rigidity relaxed in a large number of cases by parliamentary enactments, authorizing suits to be maintained by executors and administrators for causes of action existing in the lifetime of the deceased. * * * The Revised Statutes have proceeded upon the assumption that this rule of the common law was in force in this State, and, without legislative sanction, actions for a tort could not be maintained against the tort feasor by the personal representatives of the deceased party. Moore v. McKinstry, 37 Hun, 194 (197), citing Cregin v. Brooklyn Crosstown R. R. Co., 75 N. Y. 192; Murphy v. N. Y. C. & H. R. R. R. Co., 31 Hun, 358; Kelsey v. Jewett, 34 Hun, 11.

Legislation modifying the common-law rule began as early as 1330, by which a cause of action was given for goods and chattels of the testator carried away in their lifetime. Bigelow, § 107. The Revised Statutes provide (9th ed., pp. 1907 and 1908) as follows:

"Section 1. For wrongs done to the property, rights, or interests of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or after his death, by his executors or administrators, against such wrongdoer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects as actions founded upon contracts.

Art. 15. Effect of Death of Party Plaintiff or Defendant. "§ 2. But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator.”

The rights and interests for tortious injuries to which this statute preserves the right of action have frequently been considered, and it is generally held that they must be pecuniary rights or interests, by injuries to which the estate of the deceased is diminished. The exceptions in the statute are such as scarcely to leave any conceivable action for injuries to other rights uncovered by them. But where an injury to pecuniary interests is shown, the intent of the statute seems plain that the cause of action shall survive, notwithstanding that such injury be caused by a tort, provided it be not one of the torts specifically mentioned and excepted in section 2. All pecuniary rights (not resulting from the enumerated and excepted causes, such as assault and battery, slander, etc.) are placed upon the same footing when occasioned by a tort, as if arising from breach of contract, and such is the language of the statute. It declares that for wrongs done to the rights or interests of another (except the specified wrongs), the cause of action shall survive in the same manner and with the like effect in all respects as actions founded upon contracts. In Haight v. Hayt, 19 N. Y. 464, 468, it is said by Grover, J., that the exceptions contained in the section manifest the intention of the legislature that all other actions founded upon torts should survive. And in the same case at page 474, Denio, J., says that "the cause of action (which was for false representations), was for a wrong done to the rights and interests of the plaintiffs. The exception in section 2 shows, if there was otherwise any doubt, that the prior section was intended to embrace this case." Cregin v. Brooklyn Crosstown R. R. Co., 75 N. Y. 192 (194, 195), cited Bennett v. Bennett, 116 N. Y. 584 (588). See s. c., 83 N. Y. 595.

Where the plaintiff, in an action to recover damages for personal injuries caused by the defendant's negligence, dies pending an appeal from a judgment dismissing the complaint, the action abates, and it cannot be revived by his personal representatives, even for the purpose of relieving the estate from its liability to pay costs certainly where it does not appear that any judgment