Bennett v. Woolfolk — 62 N.Y. St. Rep. 55

Majority

p. 55

Frank A. Bennett, as Receiver, etc., Resp’t, v. Edward G. Woolfolk et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed July 27, 1894.)

Headnote

Receivers—What passes.

A cause of action for a trespass, committed on the land of the judgment debtor before the appointment of a receiver, passes to him.

Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

Wm. J. Marshall, for app’lts ; Frank A. Bennett, for resp’t.

This is an appeal from a judgment of the county court entered upon the verdict oí a jury. The action is for trespass on the lands of one Quinn, by digging holes in his dooryard, anchoring there cables for defendant’s derricks, and piling stones on his sidewalk In supplementary proceedings against Quinn, the plain.tiff was appointed receiver. But one exception was taken on the trial, that to the refusal to dismiss the cpmplaint. The motion was based on the ground that the cause of action was not assignable, and did not pass to the receiver. This is plainly untenable. All causes of action for injuries to property rights survive to personal representatives, and are therefore assignable. Code, § 1910; 2 Rev. St. pp. 447, 448; Byxbie v. Wood, 24 N. Y. 607 . It is now objected that there was no evidence to show the amount of damage. These damages were not justly the subject of expert testimony. It was-not for witnesses, but for the jury, to say what would be a fair compensation for the inconvenience of

p. 56

posts and cables in the dooryard, and stones obstructing the sidewalk.

The judgment and order denying new trial should be affirmed,, with costs. All concur.

Cases cited

Byxbie v. Wood 24 N. Y. 607 N.Y. p. 55