
    Giacomino Vitto, Appellant, v. Patrick Farley, Defendant; John J. Keogan and Mary A. Ryan, as Executors, etc., of Patrick Farley, Deceased, Respondents.
    
      Abatement of am action for personal injuries — death of the defendant after a verdict' in favor of the plaintiff has been set aside.
    
    Where in an action brought to recover damages resulting from personal injuries,, the defendant dies after a verdict for the plaintiff has been set aside and a new trial ordered, the plaintiff, for the purposes of an appeal from the order setting - aside the verdict and ordering a new trial, is entitled to have the personals representatives of the defendant substituted as parties defendant.
    Appeal by the plaintiff, Giacomino Yitto, from an order of the ■ Supreme Court, made at the New York' Special Term and entered, in the office of the clerk of the county of New York on the 22d’. day of April, 1896, denying his motion to revive the action and to-substitute the executors under the last will and testament of the: defendant as defendants, in the place of the defendant, who died, after the commencement of the action.
    The action was brought to recover damages for personal, injuries-to the plaintiff alleged to have been caused by the negligence of the defendant. Before the death of the defendant the action had been tried, and a verdict rendered in favor of the plaintiff for $750, and the verdict had, upon motion of the defendant, been set aside and a: new trial ordered, and from this order an appeal had been taken - to-the Appellate Division of the Supreme Court. The defendant died just after this appeal had been taken, and thereupon the motion was ■ made, and the order entered from which the present appeal is; taken.
    
      
      Edward W. S. Johnston, for the appellant.
    
      Edwin F. Stern, for the respondent:
   Williams, J.:

It is provided by section '764 of the Code of Civil Procedure, that After verdict * * * 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.”

In Wood v. Phillips (11 Abb. Pr. [N. S.] 1, Ct. App.), which was an action foy assault and battery, there was a verdict for the plaintiff, and on exceptions ordered to be heard in the first instance at the General Term, a new trial was ordered. The plaintiff then died. The administrator of the plaintiff was brought into the action and appealed to the Court of Appeals from the order made by-the General Term ordering a new trial. The provision of the Code of Procedure then in force was the same as the provision above quoted now in force. The court held that the appeal could be prosecuted by the administrator of the plaintiff, Rapallo, J., in his opinion saying : A claim for damages for a purely personal wrong, while it remains unliquidated and unascertained by a verdict, dies with the person, but the intent of the section of the Code * * * seems to be to prevent that result after the claim has been ascertained by verdict. In that 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 representatives 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. So long as the right to review the action of the court in setting aside a verdict continues, it cannot be said that the verdict is absolutely annihilated, for it is Still capable of being restored to life. In the present case, the death appears to have taken place after the order for a new trial was granted, but this fact does not change substantially the rights of the parties.

“ The right to appeal from the decision granting a new trial and to proceed for the purpose of restoring the verdict, can be held to pass to the personal representatives on the same principle upon which the right to enforce the verdict passes to them.”

In Carr v. Rischer (119 N. Y. 117), which was a penal action under the Manufacturing -Law, and which the court held was one of the actions that abated upon the death of one of the parties before verdict, the action had proceeded to verdict and judgment in favor of the plaintiff, and, on appeal, the General Term had reversed the judgment and ordered a new trial. Then the plaintiff died. The plaintiff’s executor was brought into the case, and took an appeal from the decision of the General Term to the Court of Appeals. Then the defendant died. The- representatives of the defendant moved to dismiss, the appeal to the Court of Appeals, on the ground that the action had abated by the death of the parties. The motion was denied, Earl, J., in his opinion, saying : The original wrong was merged in the judgment, and that then became property with all the attributes of a judgment in an action ex contractu. Since the rendition of the judgment the controversy between the parties has been over the judgment, not over the original wrong. After the reversal of the judgment there could never be a new trial, because there ivas no one living legally bound to respond for the wrong, or who could legally ask for its redress. The reversal of the judgment did not for every purpose strike it out of existence, as if it had never had being. It still had a potential existence. The reversal was not final. The law gave opportunity by appeal for its restoration, and thus the controversy over the judgment as property could be continued. The plaintiff by the appeal seeks to fasten upon the representatives of the deceased defendant, not responsibility for the original wrong, but for the judgment, and she seeks, not to recover damages for the wrong, but to enforce and realize Upon the judgment as an asset of the estate which she represents. We, therefore, perceive no reason to doubt that the present controversy may continue without violating any rule of law, and for this conclusion we may invoke the principle laid down in Wood v. Phillips (above) as sufficient authority.”

To the same effect is Hart v. Washburn (62 Hun, 543), General Term, first department.

These authorities are conclusive and satisfactory, and it needs no comment to show that the court erred in the denial of the motion and making of the order here appealed from. The decision of the motion was placed upon the authority of Corbett v. Twenty-third Street Ry. Co. (114 N. Y. 579). In that case there had, however, been no verdict, but merely a nonsuit and a judgment in favor of the defendant thereon. An appeal had been taken by plaintiff to the General Term, and the judgment had been reversed and a new trial ordered. The defendant had then appealed to the Court of Appeals, and pending the latter appeal the plaintiff died. The representatives of the plaintiff sought to revive the action and further prosecute it. The court held that they could not do so; that there had been no verdict or report, and that the nonsuit was not a decision within the meaning of section 764 of the Code of Civil Procedure. It will be seen that, in that case, the plaintiff’s representatives had nothing of value which they could enforce. If the original nonsuit was upheld, they had nothing. If. the order for a new trial was sustained, they could only hope to recover for the original wrong, and that would not he. permitted. There had been no verdict .or judgment for damages to restore or uphold.

It will readily be seen that this decision was not in conflict with the former cases in the Court of Appeals, hereinbefore referred to, and was not an authority for the denial of the motion and the making of the. order here appealed from.

The order appealed from must be reversed, with costs of the appeal, and the motion granted, with ten dollars costs to abide the event.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide event.  