
    In the Matter of the Petition of Rosa Tubbiolo, as Administratrix, etc., of Salvatore Tubbiolo, Late of the County of Kings, for Leave to Continue and Prosecute an Action. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    July 27, 1911.
    Abatement — death of plaintiff in negligence action after judgment for defendant — when administratrix not entitled to prosecute appeal.
    Where a verdict for the defendant in- an action for personal injuries has been affirmed and the plaintiff’s motion for leave to appeal denied and, pending an appeal from a denial of a subsequent motion for a new trial on the ground of newly-discovered evidence, the plaintiff died so that his action abated, Ms administratrix wiil not be allowed to prosecute the action and appeal ¡as if it had origmally been brought by her, if the decedent left no estate to protect against the defendant’s judgment for costs. TMs, because should the 'admmistratrix be successful in her appeal, no judgment on the husband’s cause of action could be had as it abated at Ms death, while she could bring a statutory action to recover for the decedent’s death by the removal of the bar of the prior action.
    Appeal by the Brooklyn Heights Railroad Company 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 Kings on the 25th day of February, 1911, denying the appellant’s motion to vacate an order entered in said clerk’s office on the 9th day of January, .1911.
    
      James W. Carpenter [George D. Yeomans with him on the brief], for the appellant.
    
      Louis Levy [Philip S. Saitta with him on the brief], for the respondent.
   Thomas, J.:

Tubbiolo sued defendant for personal injuries; the verdict' was against him and was affirmed by this court and reargument denied, whereupon leave .to appeal was denied by this ' court and the Court of. Appeals. Then came a motion fora new trial on the ground of newly-discovered evidence, which was twice denied, and plaintiff died in December, 1910, after filing, notice of appeal. In January, 1911, there was entered an ex parte order permitting plaintiff to prosecute the action and appeal as if it had been origmally brought by her, and from ah order denying a motion to set this aside defendant now appeals.

Justification for the order is suggested in that it enables the plaintiff to attempt to get rid of the present judgment, which is a bar to an action by her, and to relieve the estate of costs. It is obvious that the original order goes further, for it makes this action the original action of the administratrix. The order was ex parte, but that is an irregularity which defendant has failed to state in its notice of motion. There was a judgment against Tubbiolo for costs. He died. The liability to pay that judgment devolved on his estate, and if there were ■ an interest represented by the administratrix which that judgment affects, there would be some reason for admitting her to contest it.. But the affidavit of. the attorney in charge is that “ decedent left behind him absolutely nothing in the way of an estate. ” Hence, there is nothing to protect in that direction. But the administratrix comes in to remove a bar to an action in behalf of herself as decedent’s widow. If she has a cause of action for negligence causing death, it belongs, to her to be enforced by her as administratrix and is independent of and unrelated to the present action. She has been let in to prosecute this action to enable herself to maintain an action for the widow and next of kin, if any there be. So she, a stranger to this •action, would contest it to help her in her own action. If the order should be reversed and a new trial granted and should be had, no verdict on her cause of action could be given, as it is not present in this action, and no verdict on the husband’s cause of action could be had, as it abated by his death. Of what avail, then, the new trial? None, except to permit her to obtain an order for it and then withdraw this action. For what purpose ? So that she could' bring her action for the recovery of her own damages and defeat defendant’s defense that has already prevailed. ’ That is the sole purpose. She, in the interest of herself individually, prosecutes this action which has abated by the death of the person who owned the cause of action, which did not survive to his administratrix and in which she has no interest whatsoever. The case is this: A sues for personal injuries, and judgment that defendant is not liable is rendered, entered upon the verdict of a jury. The cause of action is extinguished by the judgment, and if it were not, it dies with A. A’s administratrix, without any right, title or interest in what was A’s cause of action and without capacity to enforce it even if there were no judgment against him, is substituted in the action. She, owning nothing of the subject of the action, is designated to go forward with it. She can recover nothing, for the subject of recovery has ceased to exist. But there is something in reserve, viz., the alleged damages of the widow, and so that she may clear the record of her husband’s litigation and defeat and occupy the place with her own suit, she is permitted to come in. Not only is she permitted to come in, but the action is made her original action, as if she had brought it. It is sufficient cause, for denial of the motion that she seeks to be a party in interest in what she has and can have no interest, and added to that seemingly is the a/ppropriation of her defeated husband’s abated action wherein to exploit her own separate claim. '

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Jerks, P. J., Carr, Woodward and Rich, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. 
      
       See Tubbiolo v. Brooklyn Heights R. R. Co. (134 App. Div. 940, 987).— [Rep.
     