Levinsohn, as maker, of a check for $1,100 to the order of defendant Joseph Rosenthal, who indorsed the same over to the plaintiff. Prior to such indorsement, defendants Abe Rosenthal and Morris Goldstein had indorsed the check as an inducement to plaintiff to cash it. After plaintiff had thus paid the money therefor, the defendant-respondent Levinsohn stopped payment thereon. After certain denials, the answer of defendant Levinsohn sets out as a first separate defense a charge of conspiracy, with which we are not concerned, and as a second defense that prior to the commencement of the action "the other defendants had paid and discharged plaintiff's claim by delivering to him money and securities." Plaintiff was asked at the trial whether he had received security of any kind from any one of the three indorsers, and answered in the negative. Defendant Morris Goldstein now swears: * "That upon the cashing of the check the plaintiff demanded security from the deponent and the other defendants, and that deponent personally delivered to plaintiff his savings bank book in the sum of $500; that deponent had demanded the return of the book a number of times, and had been refused." In an answering affidavit made for the plaintiff on this motion, the same Morris Goldstein swears, however, that his bank book was delivered by him to the plaintiff several weeks before the cashing of the check in suit, for the purpose of securing the validity or payment of an altogether different check drawn on an Alabama bank, and that he signed the affidavit previously referred to by inadvertence. I pass by the consideration that, an issue having been framed by the pleadings, and in part by the answer, in regard to the giving of security for this check by some of the defendants, and the plaintiff having been expressly interrogated in regard thereto, evidence of any of the defendants on that subject cannot be properly regarded as "newly discovered," nor that in any event, in view of the second affidavit referred to, can the alleged newly discovered testimony be reasonably expected to change the result at a new trial. The salient reason for which this order must be reversed is that the alleged newly discovered evidence and the issue to which it relates is manifestly wholly immaterial to the question of defendants' liability on the check. On this point respondent contents himself with the simple statement in a 27page brief: "This fact-namely, whether security had been given-was material to the issues." It is not necessary to refer to Madison Square Bank v. Pierce, 137 N. Y. 444, 33 N. E. 557, 20 L. R. A. 335, 33 Am. St. Rep. 751, or the other cases cited by the appellant, to demonstrate the perfectly selfevident proposition that it has no relation whatsoever to the issue of defendants' liability as maker upon a check of which the plaintiff is concededly the holder for value. Order reversed, with $30 costs, and judgment reinstated. All con cur. (182 N.Y.S.) YOUNG v. BIJUR et al. (Supreme Court, Appellate Term, First Department. June 14, 1920.) Attorney and client 128-Complaint to recover money covered by lien held demurrable. Where money is rightfully in possession of a firm entitled to a lien for services, a complaint to recover the money is demurrable, in absence of allegation that sum previously paid was in full for services, or that lien had been adjusted. Appeal from City Court of New York, Special Term. Action by Eleanor L. Young against Harry Bijur and Harold H. Herts, copartners doing business under the name of Bijur & Herts. From an order overruling a demurrer to the complaint, defendants appeal. Reversed, with leave to plaintiff to plead anew. Argued June term, 1920, before DELEHANTY and WAGNER, JJ. Katz & Sommerich, of New York City (Otto C. Sommerich and Maxwell C. Katz, both of New York City, of counsel), for appellants. James F. Swanick, of New York City, for respondent. PER CURIAM. The defendants came rightfully into possession of the moneys upon which they had a lien for their services. Since the complaint contains no allegation that the sum previously paid was in full for services to be rendered, or that the defendants' lien had been adjusted, it is evident that it states no cause of action. Gunning v. Quinn, 81 Hun, 522, 30 N. Y. Supp. 1015; Rose v. Whiteman, 52 Misc. Rep. 210, 101 N. Y. Supp. 1024. Order reversed, with $10 costs and disbursements, and demurrer sustained, with $10 costs, with leave to plaintiff to plead anew within six days after service of a copy of the order entered hereon and notice of entry thereof, upon payment of costs in this court and in the court below. BIJUR, J., taking no part. (111 Misc. Rep. 244) CLOUGH v. GARDINER. (Supreme Court, Special Term, Kings County. March, 1920.) 1. Abatement and revival 49-Action does not survive defendant's death, though surviving in state where accident occurred. Under Code Civ. Proc. § 1902, an action against a resident of New York state for damages for causing death of plaintiff's intestate husband by alleged negligence in killing him with an automobile while defendant was touring in New Hampshire, does not survive defendant's death, and cannot be revived against his administrator, even though under Pub. St. N. H. 1901, c. 191, § 9, a right of revival exists in that state against estate of deceased defendant in such an action, in view of Decedent Estate Law, § 120, and Code Civ. Proc. § 3343, subd. 9. 2. Abatement and revival 52-Generally actions ex delicto abate on death of either party. Except as modified by statute, all actions ex delicto abate on the death of either party. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes The action under Code Civ. Proc. § 1902, for wrongful death is an entirely new, original, and distinct cause of action based upon the theory of an injury, not to the deceased's estate, but to the estate of the beneficiaries named in the statute. 4. Courts -Transitory action given by statute of another state will not be enforced in New York, if contrary to its "public policy." Though a foreign statute gives rise to an obligation which, if transitory, follows the person and may be enforced wherever he may be found, the right will not be enforced in New York, if sound reasons of public policy make it unwise to lend the aid of its courts to its enforcement. 5. Words and phrases-"Public policy." In a judicial sense, public policy does not mean simply sound policy, or good policy, but it means the policy of a state established for the public weal, either by law, by courts, or general consent. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Public Policy.] Action by Frances E. Clough as executrix of Enos M. Clough, deceased, against Clarence R. Gardiner. On motion by plaintiff, after defendant's death since commencement of the action, for an order to revive the action against his administrator. Motion denied. Philip Carpenter, of New York City, for the motion. KAPPER, J. Plaintiff, as executrix, etc., of her deceased husband, brought this action in the Supreme Court, Kings County, to recover damages for his death alleged to have been occasioned by the negligence of the defendant Gardiner. The accident occurred in the state of New Hampshire while Gardiner, a resident of Kings county, N. Y., was touring in an automobile which is said to have struck and killed said deceased. Since the commencement of the action Gardiner died, and this motion is for an order to revive the action against Gardiner's administrator, the effect of which would be to charge Gardiner's estate with liability for Gardiner's negligence. It is conceded that by the Public Statutes of New Hampshire (chapter 191, § 9) a right of revivor exists in that state against the estate of a deceased defendant in an action of this character, and assuming that to be the law of New Hampshire, as averred in the affidavits both in support of and in opposition to this motion, the question here is whether such an action pending in our state survives the death of a defendant resident in this state. [1-3] The cause of action set forth in the complaint is transitory in character, and exists, not only in the state where it arose, but whereever the defendant may be found, or, at least, the right to maintain it in this state is fixed. Can such an action, having properly been brought, be continued in this state after the death of the defendant, where under our own law such an action abates, although, had it been brought in the lex loci, such a revivor would have been authorized. The leading case in this state is Hegerich v. Keddie, 99 N. Y. 258, 1 N. E. 787, 52 Am. Rep. 25, where it was held that a cause of action for negligence resulting in death, given by statute to the representa For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) tive of the decedent (Code Civ. Proc. § 1902), is abated by the death of the wrongdoer, and does not survive against the wrongdoer's estate. The common law and statutory history of actions ex delicto is extensively discussed in the case cited, and it is pointed out that, except as modified by statute, all actions ex delicto abate upon the death of either party. Such modifications are found in the Revised Statutes of 1828. 2 R. S. pp. 447, 448, §§ 1, 2. Section 1, providing that the right to maintain the action against the wrongdoer and after his death against his executors or administrators by the person injured through wrong done to his property rights or interest is the same as though the action were founded upon contract, is limited by section 2, which provides: "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." These provisions of the Revised Statutes have been incorporated in section 120 of the Decedent Estate Law (Laws 1909, c. 18 [Consol. Laws, c. 13]), which reads: "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. This section shall not extend to an action for personal injuries, as such action is defined in section thirty-three hundred and forty-three of the Code of Civil Procedure; except that nothing herein contained shall affect the right of action now existing to recover damages for injuries resulting in death." By subdivision 9 of section 3343 of the Code, to which reference is made in the Decedent Estate Law, supra, the definition is that a "personal injury" includes libel, slander, criminal conversation, seduction, and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another. From these statutes we see an enumeration of the only instances in which the rigors of the common law have been modified with regard to the maintenance of actions ex delicto, with the single additional and important exception of the cases where death. ensues as the result of the injury, and in such cases a right of action is given only to the representatives of the person whose death was occasioned by the injury. Code Civ. Proc. § 1902. The action authorized by section 1902 of the Code is not a derivative action; it is not the same cause of action that existed in favor of the deceased in his lifetime and revived in favor of his next of kin, although the conditions specified by the statute upon which such an action may be maintained is the right of the injured person to maintain an action if death had not ensued. McKay v. Syracuse R. T. · Co., 208 N. Y. 359, 363, 101 N. E. 885. The action under section 1902, supra, is an entirely new, original, and distinct cause of action, created by statute and based upon the theory of an injury not to the estate of the deceased, but to the estate of the beneficiaries of the de ceased named in the statute. Kelliher v. N. Y. Central & H. R. R. R. Co., 212 N. Y. 207, 211, 105 N. E. 824; Hamilton v. Erie R. R. Co., 219 N. Y. 343, 114 N. E. 399, Ann. Cas. 1918A, 928; Matter of Meng, 227 N. Y. 264, 276, 125 N. E. 508. Speaking of the statutory right of action for causing death, the Court of Appeals in Hegerich v. Keddie, supra, 99 N. Y. 268, 1 N. E. 793, 52 Am. Rep. 25, say: "It will be observed also that the statute, although creating a new cause of action, and passed for the express purpose of changing the rule of the common law in respect to the survivability of actions, and conferring a right upon representatives which they did not before possess, does not undertake, either expressly or impliedly, to impair the equally stringent rule which precluded the maintenance of such actions against the representatives of the offending party. The plain implication from its language would, therefore, seem to be at war with the idea that the Legislature intended to create a cause of action enforceable against, as well as by, representatives. The cause of action thereby given is not to the estate of the deceased person, but to his or her representatives as trustees, not for purposes of general administration, but for the exclusive use of specified beneficiaries." In Matter of Meekin v. Brooklyn Heights R. R. Co., 164 N. Y. 151, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635, the court say: "In Hegerich v. Keddie, 99 N. Y. 258, it was held that the cause of action for damages from negligence resulting in death abates upon the death of the wrongdoer, and that an action cannot be maintained against his representatives. This is a necessary result from the fact that the Code modifies the Revised Statutes and the common law only as to the personal representatives of the person injured, and not as to those of the person who inflicted the injury." [4, 5] While a foreign statute, not the law in this state, may give rise to an obligation which, if transitory, follows the person and may be enforced wherever the person may be found, and while it is not essential that to enforce such a right the foreign statute must be duplicated here or supported here by a similar statute, such a right will not be enforced if sound reasons of public policy make it unwise for us to lend our aid. Hence, the law of the forum is material when it sets a limit of policy beyond which such obligations will not be enforced there. See Loucks v. Standard Oil Co., 224 N. Y. 110, 120 N. E. 198. By the settled law of this state we are informed that section 1902 of the Code marks a departure from the common-law rule in favor of the next of kin of the deceased injured person, in that it creates a new cause of action not known to the common law, but that with respect to the wrongdoer himself there has been no departure from the common law. The action for death may be brought against the wrongdoer himself, but it abates upon his death and may not be maintained against his personal representatives. In this respect there has been no modification of the common law. This, therefore, seems to be the declared public policy of our state, steadfastly maintained both by legislative enactment and judicial decision down to the present time. When we speak of the public policy of the state, we mean the law of the state, whether found in the Constitution, the statutes, or judicial records. People v. Hawkins, 157 N. Y. 1, 12, 51 N. E. 257, 42 L. R. A. 490, 68 Am. St. Rep. 736. In a judicial sense, public |
