
    Sarah Stewart Wickham and Anna M. Stewart, Respondents, v. John M. Roberts, Appellant, Impleaded with Don A. Gilbert, Defendant.
    Third Department,
    May 2, 1906.
    Assignment of action — action for falsely representing bonds to be a first lien on property may be assigned after death of promisee — such representation when false is ground of action.
    An action based on false representations by the defendant in stating bonds to be a first lien upon property is assignable, and although founded upon a wrong belongs to the estate of one who has suffered 'damage by reason thereof. After the death of the promisee, the cause of action may be assigned by his administrator and be maintained by the assignee.
    The fact that the bonds sold by the defendant were good when sold, is not a defense- to an action founded upon a false representation that they were a first lien upon the property covered.
    
      Appeal by the defendant, John M. Roberts, from an order of the Supreme Court, made at the Delaware Trial Term and entered in the office of the cleric of the county of Delaware on the 7th day of September, 1905, setting aside the direction of the court dismissing •the complaint herein and granting a new trial of the action.
    
      Julien Scott, for the appellant.
    
      James R. Baumes, for the respondents.
   Smith, J.:

These plaintiffs are two of the next of kin of Samuel Stewart, deceased. They derive their right to bring this action through assignment from the administrator of the estate of Samuel Stewart. In April, 1895, Samuejl Stewart purchased of the defendant Roberts four bonds of the Bainbridge Water Works Company. They wer.e represented by defendant Roberts to be -a first lien upon the water works and a good investment and that the interest would be paid and the bonds, when due, would either be paid or refunded. It turned out, however, that there was another mortgage lien for about the sum of $10,000 prior to' the lien of the mortgage which secured these bonds. After the death of Samuel Stewart this other mortgage lien was foreclosed and upon the sale of the property there Was nothing left to apply upon the bonds held by the estate of Samuel Stewart. The administrator in distribution of the estate assigned this claim to these plaintiffs who have brought this action to recover damages for the false- representations of the defendant which they claim induced the purchase of the bonds. At the trial upon the close of the plaintiffs’ evidence the complaint was dismissed. From the opinion of the trial judge upon granting the order appealed from the complaint was apparently dismissed upon the ground that there was no proof that Samuel Stewart relied upon the representations of Roberts in making the purchase. Thereafter upon a motion for a new trial the trial judge set aside the order dismissing the, complaint and held that there was enough in the case to present to the jury the question whether Samuel Stewart did in fact rely upon the representations of the defendant in purchasing the bonds.

The opinion of the learned trial judge convinces us that upon the question as to whether Samuel Stewart relied upon these representations the plaintiffs had the right to., the verdict of the jury. There áre one or two other questions raised by the appellant, however, Which afe not discussed in that opinion to which it may be well to refer. In section 1 of title 3 of- chapter 8 of part 3 of the Revis'ed. Statutes (2 R. S. 447) it is provided: “For.wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action may "be brought by the person injured, or after his death/by his executors ,or administrators, agamst.snch wrong-dóer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions, founded upon contracts.” The defendant contends that while by this section a right of action was given to- the executor or administrator, it was given to him aloné and not to his assignee. He claims that in principle it is analogous to a "right óf action given to an executor or administrator-for negligence causing the" death of á party, in winch class of cases he claims that it. has been held that that action belongs to the administrator alone. (See Mundt v. Glockner, 24 App. Div. 110.) The cases, however, are not analogous. The right of action for negligence causing the death is one given for the benefit of the surviving husband- or wife and the next of kin aloné, and not for the estate,.and the executor or -administrator is made by the statute the special trustee of that- cause of action. (See Code Civ. Proc. § 1902 et seq.) The-cause-of action here'sued upon belongs to the estate, and would seem to me -to be assignable within section 1910 of the Code of Civil Procedure.

It is further contended that no cause of action lies against the -defendant, -because it appears in .the evidence that at -the time of the sale of the bonds they were considered as perfectly good". That the "bonds were good, however, was not the- only representation made. An additional representation was made to the effect that they-viere, the first lién upon the water works. This: representation was false and known to be false by the defendant when" he made it, and:-for a credit extended- Upon" the faith thereof the defendant would clearly be liable- in damages.

The order should, therefore, be affirmed, with costs. -

Order unanimously affirmed, with costs.  