
    Annie Carr, as Executrix, App’lt, v. John C. Risher, Resp't.
    
    
      (Court of Appeals,
    
    
      Filed January 14, 1890.)
    
    Abatement and bevivob—Appeal.
    In an action against the trustees of a manufacturing corporation for failure to file a report, judgment in favor of plaintiff was reversed on appeal. Plaintiff died and her representative was substituted and appealed and thereafter defendant died. Held, that the action did not absolutely abate, as it had proceeded to judgment before the death of either party, and that the appeal should not be dismissed on that ground.
    Motion to dismiss appeal.
    
      Thomas O. Shearman, for motion; John IT. V. Arnold, opposed.
    
      
       See 19 N. Y. State Rep., 718.
    
   Earl, J.

This action was commenced in the fall of 1886 by John F. Carr against John C. Risher. It was tried at a circuit in January, 1888, and a verdict was rendered for the plaintiff, upon which a judgment was rendered in his favor February 1, 1888, for $25,399.75. Thereafter the defendant appealed from the judgment to the general term, where the judgment was reversed and a new trial was granted, the formal order of reversal being entered December 6, 1888. On the next day, December 7th, the plaintiff died, and thereafter the present plaintiff, as his executrix, made application to the court for an order reviving the action and substituting her as plaintiff, and the order was granted. She then, on the same day, served notice of appeal to this court, and within a few days thereafter the defendant died.

The representatives of the defendant now move to dismiss the appeal, on the ground that the action, by the death of the parties, has absolutely abated, and that the appeal cannot be further prosecuted.

The action was brought to recover the amount of a claim against a manufacturing company organized under the general manufacturing act of 1848, on the ground of the failure of Risher, as a trustee of the company, to make and file its annual report as required by the act This is, therefore, a penal action, properly characterized as ex delicto, and if either party had died a.t any time before verdict it would have absolutely abated. Stokes v. Stickney, 96 N. Y., 323; Brackett v. Griswold, 103 id., 425; 4 N. Y. State Rep., 219 ; Blake v. Griswold, 104 N. Y., 613; 6 N. Y. State Rep., 493.

But the action went to judgment before the death of either party. 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 was 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 principles laid down in Wood v. Phillips, 11 Abb., N. S., 1, as sufficient authority. That was an action for assault and battery. The plaintiff recovered a verdict and the general term set it aside and ordered a new trial, and then the plaintiff died. Afterward his administratrix appealed to this court from the order granting the new trial. It was claimed there, as here, that the action had abated. But Rapallo, J., writing the opinion of the court, said: “A claim for damages for a purely personal injury while it remains unliquidated and unascertained by a verdict dies with the person. But the intent of the section (Í21) above cited seems to be to prevent this result after the claim has been ascertained by a 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 a 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 representative 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 sustain 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."

It is said that that decision was made when § 121 of the Code of Procedure was in force, which contained this language: “After a verdict shall be rendered in an action for a wrong, such action shall not abate by death of any party ; but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law; ” and it is claimed that as this is not an action for a personal injury, the plaintiff can have no benefit from § 764 of the present Code, which is the amended substitute for the language above quoted. It was the purpose of the provisions contained in both sections to save certain actions from abatement after verdict and before judgment, and to regulate proceedings upon the verdict in such actions. In Stringham v. Hilton, 111 N. Y., 188 ; 19 N. Y. State Rep., 621, after we had reversed the judgment for the plaintiff, we held that, notwithstanding § 121, the plaintiff could not have a new trial, the defendant having died. A case like this, where judgment has been entered and the controversy is over that, is certainly not within the scope of either section; its disposition must depend upon the general principles of law above alluded to.

The legal representatives of Bisker should, therefore, be substituted in his place, otherwise we must take action under § 1298 of the Code. ■■ ■

Our present duty is simply to deny the motion.

All concur..  