Reilly v. Erie Railroad — 63 A.D. 415

Majority

p. 415

Bridget Reilly, as Administratrix, etc., of Thomas Reilly, Deceased, Appellant, v. Erie Railroad Company, Respondent.

Headnote

Survival of cause of action — negligent injury to real property — who may bring suit therefor.

Where an owner of real property dies intestate, the right of action to recover damages for a negligent injury to such real estate, committed twelve years after his death, vests in his heirs and cannot be maintained by his administratrix. The provisions of 2 Revised Statutes, 447, section 1, relating to suits brought by and against executors and administrators, apply only to the survival of a cause of action arising in favor of, or against, a deceased person during his. lifetime.

Appeal by the plaintiff, Bridget Reilly, as'administratrix, etc., of Thomas Reilly, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 28tli day of November, 1900, upon the dismissal of the complaint by direction of the court upon the opening of the case after a trial at the Orange Trial Term.

Gornelius J. Earley, for the appellant.

Henry Bacon [ Joseph Merritt with him on the brief], for the respondent.

The complaint upon its face asserts a good cause of action, an,d the defendant could not have successfully demurred, as suggested by the learned counsel for the appellant. It alleges ownership of certain real estate in his lifetime by the plaintiff’s intestate and the

p. 416

wrongful and negligent injury of the buildings thereon by an explosion occasioned by the' negligence of the defendant in the management of a powder house, located on neighboring premises owned by the latter.

On the opening of the plaintiff’s case, however, it appeared that the plaintiff’s intestate died December 30, 1887, leaving a widow and collateral heirs; that the explosion and consequent injury occurred April 4, 1900, or more than twelve years after his death, and that the plaintiff was appointed his administratrix on April 16, 1900. As the deceased had no cause of action, none survived his death, and the court necessarily dismissed the complaint in the. action brought by his legal representative.

The appellant regards the provision of the Revised Statutes (2 R S. 447, § 1) as authority for the maintenance of .the action, but that provision applies of course only to the survival of an action in favor of or against a deceased person. In Kilburn v. Coe ( 48 How. Pr. 144 ), cited by the appellant, the damages were inflicted in the lifetime of the deceased. Here upon the death of the deceased intestate the title to the real estate vested at once in his heirs, and for any injury thereafter wrongfully occasioned to the property, they alone could recover. In Mitchell v. M. E. R. Co. ( 134 N. Y. 11 ) the owner of real estate in the city of Hew York brought an action at law to recover damages for the permanent depreciation in value of his premises by the operation and maintenance of the elevated road, and having died before trial, the action was revived in favor of his executors, by whom judgment was recovered for the permanent damages. The will of the deceased was subsequently held to be invalid, and the real estate was sold under judicial proceedings. In an action by the purchaser for an injunction unless permanent damages were paid to him, the Court of Appeals held that upon the death-of the former owner the title to the property with the easements annexed, vested in his heirs; that all damages thereafter accruing belonged to them and their successors' in title, and that they could recover the same again notwithstanding such damages had been erroneously included in the former judgment.

The judgment should be affirmed.

Judgment unanimously affirmed, with costs.

Cases cited

Kilburn v. Coe 48 How. Pr. 144 N.Y. Sup. Ct. p. 416
Mitchell v. Metropolitan Elevated Railway Co. 134 N. Y. 11 N.Y. 1892-05-31 p. 416