Victory v. Krauss — 4 N.Y. St. Rep. 33

Majority

p. 33

James J. Victory, App'lt, v. Julia Krauss et al., Ex’rs, etc., Resp’ts.

(Supreme Court, General Term, First Department,

Filed October 15, 1886.)

Headnote

1. Abatement and eevivoil—What actions do not survive against personal representatives—Code Civ. Pro., § 3348.

Actions by a tenant for damages resulting from the landlord’s negligently suffering the premises to become in an unhealthy condition does not survive against the landlord’s personal representatives.

p. 34

2. Same—Rules—Assignability of cause of action—Code Crv. Pbo.,. § 1910.

One of the most comprehensive rules in determining the question whether or not the cause of action survives in favor of or against personal representatives is its assignability. Causes of action for personal injury cannot he assigned.

Appeal from a judgment of the special term sustaining the demurrer of the defendants, upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

Louis F. Post, for app’lt; Jas M. Fitzsimons, for resp’ts.

At the time the plaintiff was a tenant of the defendant’s testator, one Pitschke, three of his children sickened and one of them died, as is alleged in the complaint, by reason of the defective construction of a tenement by which deleterious gases permeated the house and penetrated the apartments of the • plaintiff. The charge against the defendant’s testator is, that he negligently suffered the premises to become in that condition and negligently rented the same to the plaintiff without informing him of their dangerous and unhealthy condition.

By the demurrer, two questions are presented for our consideration; the first of which is whether the cause of action, admitting that there was one originally against the-landlord, survives, and is maintainable against .his personal representatives, if that is decided against the plaintiff, it will not be necessary to consider any other question which has been the subject of argument by counsel.

The cause of action comes under the head of personal injury, as defined by subdivision 9 of section 3343 of the Code of Civil Procedure, as it is an “injury to the person, either of the plaintiff or of another.” One of the most comprehensive rules in determining the question whether or not the cause of action survives in favor of or against personal representatives, is its assignability. It is the guide for determining for what injuries executors can be sued as well as for what injuries they can maintain an action. Section 1910 of the Code of Civil Procedure excepts out of the category of matters that may be assigned, causes of action to recover damages for personal injury, and places them on the same basis as a breach of promise of marriage. Two recent cases in the court of appeals have finally and completely settled this question in accordance with the plain language of the Code, namely, the cases of Hegerich v. Keddie ( 99 N. Y., 258 ) and Moriorty v. Bartlett ( 99 N. Y., 651 ), and these render any extended discussion of the question quite superfluous.

The judgment is affirmed, with costs.

Daniels and Brady, JJ., concur.