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

to in section 1910, is defined by section 3343, subdivision 9, as including libel, slander, criminal conversation, seduction, malicious prosecution, assault and battery, false imprisonment or other actionable injury to the person either of the plaintiff or another.

While at common law, and as a general rule, the qualities of assignability and survival are tests each of the other and convertible terms, as was held in Hegerich v. Keddie, 99 N. Y. 258; Brackett v. Griswold, 103 N. Y. 425, yet the legislature may furnish a new statutory rule of assignability, leaving the law as to survival of causes of action unchanged. Blake v. Griswold, 104 N. Y. 613 (616, 617). Query, as to whether such change has been made by sections 1909-1910.

In Zabriskie v. Smith, 13 N. Y. 322, the right to transfer a cause of action for a tort is considered. It is said in opinion of Denio, J., 332, that in McKee v. Judd, 12 N. Y. 622, it was held that the right of action for the conversion of personal chattels might be assigned so as to vest property in the assignee, and the opinion then proceeds to discuss the right to assign a cause of action for damages caused by a false and fraudulent representation of the solvency of the vendee, and holds that it is not assignable. In the course of the discussion the maxim of the common law that a personal action dies with the person is considered and commented upon, together with the fact that actions ex delicto were not assignable until the statutes of Edward III, changing the rule in that respect.

In Pulver v. Harris, 52 N. Y. 73, it is held that a claim for assault and battery is not assignable.

In Merrill v. Grinnel, 30 N. Y. 594, that a cause of action for the loss of a passenger's trunk may be assigned; and in Quinn v. Moore, 15 N. Y. 432, that a mother's interest in a suit for causing child's death may be transferred.

Byxbie v. Wood, 24 N. Y. 607, is authority for the rule that a cause of action for money obtained by false representations may be assigned.

In Meech v. Stoner, 19 N. Y. 26, the same rule as to an action to recover money lost at gambling.

An assignment of action, with all claims or demands, or any portion of them, carries a right of action for their previous conversion, to the assignee. Sherman v. Elder, 24 N. Y. 381; Buckley v. Wells, 33 N. Y. 518.

Art. 17. Receiver, when Liable for Tort.

Actions for fraud and false representations are assignable. Johnson v. Bennett, 5 Abb. Pr. (N. S.) 331; Graves v. Spier, 58 Barb. 349; French v. White, 5 Duer, 254.

An action for conversion is assignable. Wolf v. Rausch, 22 Misc. Rep. 101, 48 N. Y. Supp. 716; Richtmyer v. Remsen, 38 N. Y. 206; Haight v. Hayt, 19 N. Y. 464.

A claim for damages caused by a leaking tank is assignable. Butts v. J. C. Mackay Co., 55 St. Rep. 137.

A claim for carelessly setting fire to fences and grass is assignable. Fried v. N. Y. C. R. R. Co., 25 How. Pr. 285.

A claim for decreased rental value caused by elevated railroad is not a claim for personal injury, and is assignable. Birch v. Met. El. Ry. Co., 29 St. Rep. 318, 8 N. Y. Supp. 325.

A claim against a sheriff for failing to make a return or for making a false return is assignable. Jackson v. Daggett, 24 Hun, 204.

An action against the officers of a corporation to charge them with individual liability is assignable. Bonnell v. Wheeler, 16 Abb. Pr. (N. S.) 81; Pier v. George, 86 N. Y. 613.

Section 1911 authorizes the transfer of cause of action to cancel an instrument executed as security for usurious loan under certain circumstances, but the person taking the transfer does not succeed to the right to procure relief without paying, or offering to pay, any part of the sum or thing loaned. Wheelock v. Lee, 64 N. Y. 242, seems to have been decided previous to the enactment of this provision.

Authorities bearing upon this question are collated in Fiero on Special Actions, pp. 1403-1418.

ARTICLE XVII.

RECEIVER, WHEN LIABLE FOR TORT.

In Cardot v. Barney, 63 N. Y. 281, it was held that a person acting as receiver of an insolvent railroad corporation running the road, was not personally liable in an action for negligence where no personal neglect was imputed to him, either in the selection of agents or in the performance of any duty, but where the negligence was that of a subordinate employed in compliance with the order of the court.

In Kain v. Smith, 80 N. Y. 458, it was sought by counsel to have this rule extended so as to relieve a receiver, as such, from

Art. 18. Plaintiff, a Wrongdoer.

liability. The court, however, distinguished the liability of the person acting as receiver in his individual capacity and the liability of the trust fund, holding that damages for injury to the person would be chargeable upon and payable out of the fund in court, the same as other expenses of administration of the trust.

This principle was applied in Camp v. Barney, 4 Hun, 373; and in Graham v. Chapman, Receiver, 33 St. Rep. 349, 11 N. Y. Supp. 318, it is held that a receiver must be held liable for injuries to his employee, in the same manner and to the same extent as the corporation itself would be held if it had not gone into the hands of a receiver. See also Durkin v. Sharp, 88 N. Y. 225; Fuller v. Jewett, 80 N. Y. 46.

In a note to 15 L. R. A. 120, attention is called to the fact that Cardot v. Barney has not been followed even in this State, and has been severely criticised in other States. It is stated that this decision is probably based upon the fact that the action was brought against the receiver personally.

ARTICLE XVIII.

PLAINTIFF, A WRONGDOER.

Where two or more persons are jointly concerned in wrongdoing, and by the negligent or reckless action of one of them another is injured, the latter is without remedy for the injury. The case may be instanced of persons participating in a riot, or in a smuggling venture, or in illegal sports; an injury which one suffers under such circumstances is as directly traceable to his own breach of the law as to the misconduct of his associate, and any demand made on his part for redress would be based upon a showing of the violation of his own duty to the public. The case of one who is injured in doing an illegal act may be said to be, if possible, still plainer and more just than in a case where the action of the other party is wrongful only because of the negligence. Cooley Elements of Torts, 45.

The fact that a person has committed a wrongful act, while it does not create a duty upon the part of another to exercise diligence to avoid doing harm, does not justify the latter either in malicious or wanton maltreatment or in failing to take reasonable care to avoid harm after he has, or ought to have, knowledge of impending or avertible danger. Hale on Torts, 111.

Art. 18. Plaintiff, a Wrongdoer.

It does not appear that the plaintiff is debarred from recovering by reason of being himself a wrongdoer, unless some unlawful act or conduct upon his part is connected with the harm suffered by him as part of the same transaction. Pollock on Torts, 206, citing Spring Gun case, Bird v. Holbrook, 4 Bing. 628; Barnes v. Ward, 9 C. B. 392; Hooker v. Miller, 37 Iowa, 613.

The latter case cites Loomis v. Terry, 17 Wend. 496, which in turn cites and comments upon the English authorities. And holds that the owner of property has no right to use means endangering the life or safety of a human being for the purpose of protecting property against a mere trespasser; that the principles of humanity must not be violated, or the owner will be subjected to damages for any injury which happens.

A party owes no duty to a trespasser except that he is not justified in subjecting him to any unnecessary hazard. Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605, affirmed in 113 N. Y. 670; Ansteth v. Buffalo Ry. Co., 145 N. Y. 210 (214).

A wrongdoer is not, however, an outlaw, but may justly complain of wanton and malicious negligence. Tonawanda R. R. Co. v. Munger, 5 Den. 255 (266, 267).

The law is not so unjust and cruel as to regard a trespasser upon the lands of another as an outlaw, and so the wrongdoer may justly complain if an injury has been done to his person or property intentionally and maliciously. Boyle v. N. Y., L. E. & W. R. R. Co., 39 Hun, 171, affirmed 115 N. Y. 636.

In Magar v. Hammond, 171 N. Y. 377, reversing 54 App. Div. 532, 67 N. Y. Supp. 63, the court considers the right of a plaintiff, who is a trespasser, to recover for an alleged negligent act on the part of defendant's servant. The rule of law seems to be assumed that the plaintiff was guilty of wrong in going upon defendant's premises in the manner described, and that defendant owed him no duty except to refrain from intentionally doing him an unnecessary injury, or an injury through wanton or reckless negligence.

A wrongdoer is not without the protection of the law; so held where an action was brought against a common carrier by a pas senger for injuries sustained on Sunday. Carroll v. Staten Island R. R. Co., 58 N. Y. 126.

In Merritt v. Earl, 29 N. Y. 115 (121), it is held, per Johnson, J., that the fact that a contract was made and property delivered on board a vessel on Sunday did not exempt the defendant from liability for loss of the property.

Art. 18. Plaintiff, a Wrongdoer.

Where, through culpable omission of duty upon the part of the municipal corporation, a street has become obstructed, and in consequence a traveler upon the street is injured, it is no defense to an action against the municipality to recover damages that the accident happened upon Sunday—and that the person injured was, in traveling on that day, violating the statute relating to the "observance of Sunday." The courts may not add to the penalty imposed by that statute a forfeiture of the right to indemnity for an injury resulting from defendant's negligence, and the violation of the statute cannot be regarded as the immediate cause of the injury. Platz v. City of Cohoes, 89 N. Y. 219, citing and collating many authorities.

In an action brought to recover damages sustained by plaintiff because of his having been induced to sell meat to defendant by reason of fraudulent representations made by the latter, it was held that the fact that the beef was sold on Sunday presented no reason for vacating an order of arrest against the defendant. O'Shea v. Kohn, 33 Hun, 114, affirmed without opinion 97 N. Y. 649.

In an action for personal injuries caused by negligence of the master, the fact that such injuries were sustained while working on Sunday is no defense, where the performance of the work on that day was required by the master. Solarz v. Manhattan Ry. Co., 8 Misc. Rep. 656 (658), 29 N. Y. Supp. 1123, citing the rule from Cooley on Torts, 159, that a party violating the law is not on that account put at the mercy of others. Citing numerous authorities in this and other jurisdictions in support of the adjudication, stating that recoveries have been almost uniformly sustained upon contractual relations made in violation of the statutory provision respecting the Sabbath, on the ground that the transgression by the plaintiff was not the proximate cause of the remedy, and comments on the fact that the contract as so made did not justify the injuries complained of, and furnished no defense to the defendants who caused them. Distinguishing it from the class of cases where plaintiff must recover" through the medium and by the aid of an illegal transaction to which he was himself a party." Affirmed in 11 Misc. Rep. 715, 32 N. Y. Supp. 1149, on opinion below.

While the violation of a statute may be proved as a fact for the consideration of the jury, such violation does not necessarily establish negligence. Where a child remained upon the platform of a street car, in violation of the municipal ordinance, it was held that the plaintiff was not for that reason denied the right to assert