Opinion
May Term, 1897.
Interlocutory judgment affirmed, with costs, with leave to the defendants to answer within twenty days, on the payment of costs of this appeal and of the demurrer. Defendants may have leave to appeal to the Court of Appeals if they so elect.
The plaintiff, by his complaint, charges that by reason of the leaky and impaired condition of the house in which the plaintiff with his infant daughter, Katherine, resided, wrongfully permitted by the defendants' testator, the rain came through on to the child while she was asleep in her bed, causing her illness, and resulting in the permanent injury of her eyes, partially depriving her of the use of them, and that, as the consequence of such illness and injury, the plaintiff has been deprived of the work, labor and services of such infant and of the sums which she might otherwise have earned and will be so deprived of during her minority. The ground of the defendants' demurrer is that the complaint does not state facts sufficient to constitute a cause of action. As the facts are alleged in the complaint, the consequences may be deemed to have been the proximate result of the negligence of the defendants' testator. ( Scott v. Brown, 24 Hun, 620.) It is, however, urged and argued at length by the learned counsel for the defendants that the alleged cause of action did not survive the death of the defendants' testator. We are unable, in this respect, to distinguish this case in principle from that of Cregin v. Brooklyn Crosstown R.R. Co. ( 75 N.Y. 192). Upon the authority of that case the judgment must be affirmed. All concurred.