Pierson v. Morgan — 23 N.Y. St. Rep. 382

Majority

p. 382

Henry Pierson, as Receiver of the Widows and Orphans Benefit Life Insurance Company, Resp’t, v. Andrew N. Morgan et al., App’lts.

(Supreme Court, General Term, First Department,

Filed March 29, 1889.)

Headnote

1. Abatement and revival—Tort—When survives.

Actions in tort, except in cases of slander, libel, assault and battery, false imprisonment, or injuries to the person, can be revived or continued against the legal representatives of one of several wrong doers who are sued jointly.

2. Same — When properly separated and continued as two actions.

Where in an action to compel defendants, as trustees of a corporation, to account for property and assets of the company alleged to have been diverted and misapplied, one of the defendants dies, the action should be severed and continued as two actions, one against the surviving defendants and the other against the personal representatives of the deceased defendant.

Appeal by Justine M. Cronk, as administratrix of the deceased defendant, Andrew W. Morgan, from a special term order granting plaintiff leave to sever the action and to revive the same against the said administratrix, and to serve a supplemental summons and complaint.

P. H. Vernon, for app’lts; William C. Trull, for resp’t.

This action was brought by the receiver of the Widows and Orphans Benefit Life Insurance Company, against Andrew W. Morgan and fifteen other defendants, as trustees of the corporation, to compel them to account for property and assets of the company to a large amount, alleged to have been diverted and misapplied under the circumstances set out in the complaint. After issue was joined the defendant, Morgan, died, and the appellant was appointed his administratrix. Thereupon a motion was made by the plaintiff for an order reviving the action against the administratrix, and for leave to serve a supple

p. 383

mental summons and complaint, and for other relief including a severence of the action. This motion was granted, and from the order entered thereon the administratrix has appealed.

The appellant objects to this order on several grounds. She contends that the cause of action does not survive against the legal representatives of the deceased defendant, Andrew W. Morgan; that there is no provision of law under which an action of tort can be revived or continued against the legal representative of one of several wrong doers who are sued jointly; and that in any event the action should not have been severed, inasmuch as it is a suit against the trustees of a corporation for a general 'accounting as such trustees, and is therefore purely equita:ble in its nature.

We have considered these objections and the arguments by which they are supported, but we do not deem any of them tenable.

Under the Revised Statutes, an action for wrongs done to the property, rights or interests of another for which an action might be maintained against the wrong-doer, can be maintained after his death-against his executors or administrators, in the same manner and with like effect in all respects as suits founded upon contracts, except in cases of slander, libel, assault and battery, false imprisonment, or injuries to the person (2 R. S,, 447, 448 §§ 1 and 2.) This' suit comes within the purview of the statute, and therefore did not abate by the death of the defendant Morgan. Bond v. Smith, 4 Hun, 48 .

The counsel for the appellant insists that these provisions cited from the Revised Statutes were intended to apply exclusively to actions at law for the recovery of damages only; and to sustain this proposition he quotes in his brief a section which was proposed by the revisers, but which was not adopted by the legislature, providing that whenever a wrongful act should be done by any person for which an action at law might be brought against him, and such person should die pending suit, his executors or administrators might be substituted as defendants. From this he argues that the two sections which actually were adopted (2 R. S., 447, 448, §§ 1 and 2), were designed to be limited in their operation solely to actions at law. But it seems to us that the refusal of the legislature to enact this proposed third section, if significant of anything, indicated an intention not to restrict the application of the other sections to actions at law only, but rather a design to extend them to any suits whether legal or equitable, which might be based upon wrongs done t-> the property, rights or interests of another. Certainly the language of the sec

p. 384

tians themselves does not require the adoption of such a construction as to exclude equity suits of this nature from their operation.

The decision of this court in the case of Bond v. Smith (supra), is conclusive against the contention of the appellant that the law does not authorize the revival or continuance of an action of tort against the legal representatives -of one of several wrong doers, sued jointly. In that case, as in this, the action had been severed and the order directing its subsequent prosecution as two actions, one against the surviving defendants and the other against the personal representatives of a deceased defendant, was sustained.

The order appealed from should be affirmed, with costs.

Yan Brunt, Oh. J., and Daniels, J., concur.