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Art. 15. Effect of Death of Party Plaintiff or Defendant. for costs was entered. A nonsuit is not a verdict, report, or decision," within the meaning of section 764 of the Code of Civil Procedure. Lutz v. Third Ave. R. R. Co., 44 App. Div. 256, 60 N. Y. Supp. 761. See Corbett v. Twenty-third St. R. R. Co., 114 N. Y. 579; Peetsch v. Quinn, 6 Misc. Rep. 50, 26 N. Y. Supp. 728; Vitto v. Farley, 6 App. Div. 481, 39 N. Y. Supp. 683.

The defendant in a cause of action which abates may waive the defense and the stipulation will be enforced. Cox v. N. Y. C. & H. R. R. R. Co., 11 Hun, 621; Roberts v. Marsen, 23 Hun, 486.

After a verdict, an action for personal injury does not abate (Wood v. Phillips, 11 Abb. Pr. (N. S.) 1), unless the verdict is set aside. Kelsey v. Jewett, 34 Hun, 11; Stringham v. Stuart, 22 Abb. N. C. 281.

Where the plaintiff died on the first day of the circuit and subsequently his attorney recovered a verdict in the same suit, it was held that as the whole time of the circuit related to the first day the plaintiff's death was regarded as a death after verdict. Morris v. Corson, 7 Cow. 281; Broas v. Mersereau, 18 Wend. 653.

Where the verdict for the plaintiff is set aside after the defendant's death, the plaintiff may appeal from the order denying a motion to revive the action. This is regarded not as prosecuting an action for the original tort, but as an endeavor to save and restore the verdict. Vitto v. Farley, 6 App. Div. 481, 39 N. Y. Supp. 683.

An action for obstructing or diverting a water-course survives. Miller v. Young, 90 Hun, 132, 70 St. Rep. 507, 35 N. Y. Supp. 643.

An action for damages for carrying away plaintiff's goods, as distinguished from replevin, survives. Heinmuller v. Gray, 13 Abb. Pr. (N. S.) 299, 3 J. & S. 196.

It seems that replevin does not abate by the death of the defendant. Roberts v. Marson, 23 Hun, 486; Potter v. Van Vranken, 36 N. Y. 619. This is expressly provided by section 1736 of Code.

A cause of action for loss of services of plaintiff's child through defendant's negligence survives defendant's death. Stephen v. Woodruff, 18 App. Div. 625, 45 N. Y. Supp. 712.

A cause of action under a penal statute, such as an action under

Art. 15. Effect of Death of Party Plaintiff or Defendant. the old Civil Damage Act, survives the death of the plaintiff (Kilburn v. Coe, 48 How. Pr. 144); also the death of the defendant. Moriarity v. Bartlett, 34 Hun, 272; Morenus v. Crawford, 51 Hun, 89.

Where there has been an action for trespass against two defendants and one dies, the plaintiff may continue action against the survivor. Gardner v. Walker, 22 How. Pr. 405.

The

An action by the father of an intestate, killed by negligence, does not abate upon the death of the father, for he is the person to whom the recovery exclusively belongs under the statute. action may properly survive in the name of the administrator de bonis non of the injured party. Mundt v. Glokner, 24 App. Div. 110, 48 N. Y. Supp. 940; appeal dismissed in 160 N. Y. 571; Matter of Meekin, 164 N. Y. 145. The recovery is restricted under these cases to the pecuniary loss by the father.

The action against director of a bank for losses incurred by negligent conduct of the bank's directors survives against his personal representatives. O'Brien v. Blaut, 17 App. Div. 288, 45 N. Y. Supp. 217.

In Potter v. Van Vranken, 36 N. Y. 619, it is said, that goods taken and continuing in specie in the hands of a wrongdoer may be recovered back by the executor or personal representative of the owner, and if they have been disposed of, an action for money had and received will lie to recover their value. That in no case, after action brought, will it abate by the death of plaintiff, if the cause of action be such that it might have been prosecuted by the executor or administrator of the party.

In Hegerick v. Keddie, 99 N. Y. 258, Ruger, Ch. J., discusses the history of the statutory modifications in this State of the rule of the common law as to the survivability of actions and collates the authorities upon the subject.

The provisions of the Revised Statutes modifying the commonlaw rule in regard to the survivability of actions ex delicto affect only injuries to property rights; and as to causes of action which do not affect or concern any property right or interest as the subject of the inquiry, the common-law rule applies, and the action abates upon the death of either party. Brackett v. Griswold, 103 N. Y. 425, citing Stokes v. Stickney, 96 N. Y. 323; Hegerick v. Keddie, 99 N. Y. 258.

The subject is again considered in Blake v. Griswold, 104 N. Y.

Art. 15. Effect of Death of Party Plaintiff or Defendant. 613, where it is held that "the rule of the common law goverus the question as to the survivability of a cause of action, to recover the penalty imposed by said act upon a trustee of a corporation organized under it, who has joined in making a false annual report; it is not affected by any provision of the Code, and the action abates upon the death of either party.

Where, however, the plaintiff in such an action dies after the rendition of judgment, the action does not abate; the cause of action is merged in the judgment, which passes as assets to the representatives of the deceased, and they are entitled to be substituted in his place."

An action against a contractor of a corporation organized under the General Manufacturing Act, to recover a debt due from the company because of failure of defendant to make and file an annual report as required by the act, is an action ex delicto, and abates upon the death of either party before verdict. Carr v. Risher, 119 N. Y. 117, citing Stokes v. Stickney, 96 N. Y. 323; Brackett v. Griswold, 103 N. Y. 425; Blake v. Griswold, 104 N. Y. 613.

All actions founded upon tort survive except those named in section 2 of 2 R. S. 448, § 1. For example, an action for deceit. Haight v. Hayt, 19 N. Y. 464; Byxbie v. Wood, 24 N. Y. 607; Hadcock v. Osmer, 4 App. Div. 435, 38 N. Y. Supp. 618.

It seems

In a wrong against property the action survives whether the wrongdoer derived any benefit from the act or not. that it also survives against the representative of the wrongdoer, though the contrary has been held. Dininny v. Fay, 38 Barb. 18. An action for breach of promise cannot survive against the representatives of defendant. Wade v. Kalbfleisch, 58 N. Y. 282; Price v. Price, 75 N. Y. 244.

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An action for conversion abates. Emerson v. Bleakley, 2 Abb. Ct. App. Dec. 22.

But an action for fraudulent overdrafts survives. Union Bank v. Mott, 27 N. Y. 633.

An action by a taxpayer under the provisions of the Code and statute survives the death of plaintiff, and may continue in the names of his executors or administrators on their motion or that of a defendant. Gorden v. Strong, 158 N. Y. 407.

Where an action is based partly upon injuries to the person

Art. 15. Effect of Death of Party Plaintiff or Defendant. and partly upon injuries to property, that part abates which relates to the personal injury upon the death of defendant, but that part relating to injury to property survives. Thus, where a plumber was sued for improperly making repairs owing to which the health of the plaintiff and family suffered, causing expenses for care and medical attendance, the part relating to the personal injury abates, but the action survives in respect to the damages caused by the children's sickness. Scott v. Brown, 24 Hun,

620.

The rule is illustrated in the case of Hatchard v. Mege, 18 Q. B. Div. 771. The action was for falsely and maliciously publishing a statement calculated to injure the plaintiff's right of property in a trademark. Plaintiff died. It was held that the action abated only so far as it was a claim for libel, but so far as the tort was in the nature of slander of title the action survived.

Sections 755 to 766 of the Code, inclusive, relate to proceedings upon the death and disability of a party, or transfer of his interest, and provide, among other things, that an action does not abate by any event, if the cause of action survives or continues, making also provision for preventing the abatement of a special proceeding. These provisions of the Code relate mainly to the method of procedure in case of death or transfer of interest, including, however, provisions to the effect that if either party to an action, which would otherwise abate, dies after verdict, etc., but before final judgment, such judgment may be entered; and that after a verdict, report, or decision an action does not abate by the death of a party.

Section 764 is limited to actions for personal injuries, and if the verdict is set aside and the plaintiff dies before a new trial the action abates. Kelsey v. Jewett, 34 Hun, 11. See also as to these actions, Corbett v. Twenty-third St. Ry. Co., 114 N. Y. 579; Comstock v. Dodge, 43 How. 97.

The authorities as to what actions survive and what abate by death are collated in Fiero on Special Actions, p. 1203 et seq., and are also cited under each topic relative to particular torts.

Art. 16. Assignment of Cause of Action for Tort.

ARTICLE XVI.

ASSIGNMENT OF CAUSE OF ACTION FOR TORT.

Actions for tort, not harmful to property, are not assignable at common law. It was a principle of the common law that a right of action could not be transferred by him who had the right, to another. This rule was never followed in courts of equity. Thallhimer v. Brinckerhoff, 3 Cow. 623.

Bigelow (7th ed., p. 51), says: "Actions for tort not harmful to property are not assignable. Various reasons have been given, the common one being that such actions are peculiarly personal. How, it is asked, can another represent one whose good name has been tarnished, or whose happiness has been ruined? Perhaps the explanation really runs back to the time when torts had not yet detached themselves from crimes. Crimes of course were always personal; torts continued, after the separation, to be regarded as of the same nature, except where damages were done to property. It may also be noticed that things which are not descendible, as torts are not, are not ordinarily alienable. Torts, however, which harm property, as they survive, are assignable. So too are judgments in damages for torts."

The Code provides for the transfer and assignment of certain demands as follows:

"§ 1910. What claims or demands may be transferred.—Any claim or demand can be transferred, except in one of the following cases:

"1. Where it is to recover damages for a personal injury, or for a breach of promise to marry.

"2. Where it is founded upon a grant, which is made void by a statute of the State; or upon a claim to or interest in real property, a grant of which, by the transferror, would be void by such

a statute.

"3. Where a transfer thereof is expressly forbidden by a statute of the State, or of the United States, or would contravene public policy."

Some of the leading cases with reference to the assignability of causes of action arising out of tort are given, but no attempt will be made at full discussion of the subject under this article. since the right to assign a cause of action is considered under different forms of action. The term "personal injury," as referred

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