
    Frederick Schramme, Plaintiff, v. Maximilian Lewinson and George A. Just, Respondents. Kate Schramme, as Administratrix, etc., of Frederick Schramme, Deceased, Appellant.
    Second Department,
    January 10, 1908.
    Abatement and revival — action for personal injuries death of plaintiff after verdict set aside.
    When after a verdict for the plaintiff in an action for personal injuries the trial court sets the verdict aside and directs a verdict for the defendant and the plaintiff dies pending his appeal, his representative is entitled to revive the action, for if the direction of a verdict be reversed the original verdict is reinstated, thus preserving the action from abatement.
    Appeal by Kate Schramme, as administratrix, etc., of Frederick Schramme, deceased, from an order of the Supreme Court, made, at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 15tlr day of Juñe, 1907, denying the appellant’s motion to be substituted as plaintiff .in the place and stead of Frederick Schramme, deceased.
    
      Lehman & Telsey, for the appellant.
    
      William L. O'Brian [Frank V. Johnson with him on the brief] for the respondents.
   Woodward, J.:

This action was brought'to recover -damages for personal injuries claimed to have been sustained by the plaintiff by reason of the alleged negligence of the defendants. The action was tried before a jury and resulted in a verdict in favor of the.plaintiff in the sum of $11,000. After the rendition of the verdict the court, at the request of the attorneys for the defendants, set aside the verdict and directed a verdict in favor of the defendants and against the plaintiff, and the jury, in accordance with such direction, then rendered a verdict for the defendants. From the judgment entered on this' last' verdict the plaintiff appealed. While said appeal was pending, and before it had been'brought on for a hearing, the plaintiff died. Thereafter his widow was duly appointed administratrix, and as such seeks to be substituted as plaintiff in the ■ action. From an order denying a motion to make such substitution this appeal is taken. •

While .the procedure leading up to the appeal in the original action is' somewhat' complicated by the court having set aside the original verdict and then directed the jury to render a contrary one, yet we feel that the facts bring the case fully within the spirit of the rule laid down in Wood v. Phillips (11 Abb. Pr. [N. S.] 1).

The object of section 764 of the Code of Civil Procedure evidently was to preserve any rights represented in a verdict which would have abated-had the death of the party occurred prior to its rendition.

If.on the appeal in the main case this court should reverse the action of the trial judge, then we think that as matter of course the verdict originally rendered in behalf of the plaintiff will be reinstated.

The order appealed from should be reversed, With ten dollars costs and disbursements, and the motion granted. '

Jenks, G-aynor, High and Hiller, JJ., concurred.

Order reversed, with ten- dollars costs and disbursements, and motion granted, with costs. /  