Smith v. Lynch — 8 N.Y. St. Rep. 341

Majority

p. 341

Jennie Smith, App’lt, v. John Lynch, Resp’t.

(City Court of New York, General Term,

Filed February, 1887.)

Headnote

Abatement op action por personal injury—Code Civ. Pro., § 764.

At common law, a personal right of action dies with the person. Section 764 of. the Code, in respect thereto, refers to a verdict or decision which remains unopened and unimpaired at the time of the death of the judgment creditor, and not to a case where, prior to such death, the defendant was allowed to come in and defend, the judgment standing merely as security for any futuie recovery.

The plaintiff brought the present action to recover $2,000 damages for an assault and battery alleged to have been committed upon her by the defendant. Alter issue joined,

p. 342

the cause was reached on the general calendar, and on the failure of the defendant to appear, an inquest was taken June 11, 1886, and the jury assessed the plaintiff’s damages at $250. Judgment was 'entered and execution issued on the same day. The defendant moved to open the default, and on August 11, 1886, his application was granted; he was allowed to come in and defend, the judgment and all proceedings thereon to stand as security. The cause was restored to the calendar, and while awaiting trial, the plaintiff died intestate. Letters of administration were granted to Andrew V. Smith, who thereupon applied for leave to continue the action as administrator. The application was denied, and from such denial the appeal is taken.

Alex. R. Butts, for app’lt; S. J. O'Hare, for resp’t.

It is conceded, that at common law, a personal right of action dies with the person, but it is claimed that the present cause of action survived by force of section 764 of the Code, which provides that “after verdict, report or decision in an action to recover damages for a personal injury, the action does not abate by the death of a party, but the subsequent proceedings are the same as in a case where the cause of action survives.” This provision was evidently intended to apply to cases where a verdict, report or decision is obtained and remains unopened, unreversed and unimpaired at the time of the death of the judgment creditor. It was never intended to apply to an inquest or default opened during the life time of the party. The • temporary verdict obtained by the plaintiff was not an asset at the time of her death, it was a mere security like a bond or undertaking that, if on the trial to be had, she _ obtained a verdict, it might be secured by the lien of the judgment entered on the defendant’s default. She unfortunately died before the trial, the result of which, if in her favor, the judgment by default was to secure, and the security was only to be available in case of her ultimate success. The object of section 764 was to save to the estate of a deceased party any recovery likely to enhance the estate of the decedent (Kelsey v. Jewett, 34 Hun, at p. 14), but not to give a right of succession to untried causes of action for personal injuries, which, if unsuccessful in their prosecution, might bring the estate into debt. The cause of action died with the plaintiff; it has abated and is not the subject of prosecution by her legal representative.

The order must be affirmed, with costs.

Hyatt, J., concurs.