Opinion
November Term, 1899.
Henry Siegrist, Jr., for the appellant.
Frank M. Hardenbrook, for the respondent.
The action was brought to recover for personal injuries caused by the negligence of the defendant. Issue was joined, and the action came on for trial and resulted in the dismissal of the complaint, and judgment was then entered April 22, 1899. From this judgment the plaintiff appealed, and pending that appeal died, and letters of administration were issued upon his estate by the surrogate of New York county. The plaintiff then moved that the action be continued in the name of the administratrix, and that she be allowed to prosecute said appeal, which motion was granted, and from the order entered thereon the defendant appeals.
The action abated upon the death of the plaintiff, and unless some right is given to the administratrix to continue the action, the motion should not have been granted. ( Hegerich v. Keddie, 99 N.Y. 259; Brackett v. Griswold, 103 id. 425.) It does not appear that any provision of the Code of Civil Procedure applies. Section 755 provides that an action does not abate by any event, if the cause of action survives or continues. Here, however, the cause of action did not survive, but abated by the death of the plaintiff prior to his recovering a judgment. By section 764 of the Code it is provided 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 the party, but the subsequent proceedings are the same as in a case where the cause of action survives. Here it does not appear that there has been either a "verdict, report or decision." The complaint was dismissed upon the trial. There was a nonsuit but no verdict. Nor was there a report or decision. The word "decision" as used in the section refers to a decision made by the court upon the trial of the issues without a jury, and the word "report" refers to a report of a referee upon the trial of the issue before a referee. A nonsuit is not, therefore, a "verdict, report or decision" within the meaning of section 764 of the Code. ( Corbett v. Twenty-third Street R. Co., 114 N.Y. 581.) Nor can it be claimed that the administratrix had a right to continue the action so as to relieve the estate from the obligation to pay the costs of the action as it does not appear that any judgment for costs against the plaintiff has been entered. All that appears from the record is that upon the trial the complaint was dismissed and upon such dismissal a judgment dismissing the complaint was entered. It is quite apparent that the plaintiff can gain no advantage by continuing the action, for if the judgment should be reversed and a new trial ordered no new trial could be had as the cause of action does not survive. The cases of Wood v. Phillips (11 Abb. Pr. [N.S.] 1); Carr v. Rischer ( 119 N.Y. 117); Vitto v. Farley ( 6 App. Div. 482), do not apply. In those cases there had been a verdict in favor of the plaintiff and it was held that a representative of a deceased plaintiff in such an action had a right to sustain that verdict, and although such verdict had been set aside, an appeal for the purpose of having it restored could be continued in the name of the personal representatives of the deceased. As was said by RAPALLO, J., in Wood v. Phillips, in such a case "the verdict becomes property which passes to the representatives of the deceased, as a judgment would at common law. It becomes the duty of the executor or administrator to defend it for the benefit of the estate. If set aside after the death of the party, there seems to be no reason why the representative should not be entitled to prosecute such appeal as the law allows for the purpose of having it restored. He is not in such a case prosecuting an action for the original tort, but is endeavoring to save and restore the verdict."
There being in this case no verdict to sustain, the only object of the appeal is to reverse the judgment of nonsuit so as to award the plaintiff, or the personal representatives of the plaintiff, a new trial of the action to recover for the original tort. No such new trial could be had, for the cause of action abated by the death of the plaintiff. ( Stringham v. Hilton, 111 N.Y. 188. ) It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
VAN BRUNT, P.J., BARRETT, RUMSEY and McLAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.