
    Gerson Mayer and Joseph G. Mayer, Composing the Firm of Joseph Mayer’s Sons, Respondents, v. James Ertheiler, Doing Business under the Name and Style of M. Ertheiler & Son, Defendant. Bella Ertheiler and Alexander M. Bing, Executors, etc., of James Ertheiler, Deceased, Appellants.
    First Department,
    April 7, 1911.
    Practice — survival of action—fraud—damage to pecuniary interest — , jdeath of defendant. '
    A cause of action for fraud and deceit against a tobacco broker, who induced the plaintiffs to ¡sell a quantity of tobacco by falsely representing that the vendees wer^ financially responsible, survives the death of. the defendant and may be continued against his executors.
    The test as to whether an action survives the death of a party is whether or not the injury complained of was to pecuniary interests. It is immaterial whether or no the wrongdoer profited by the wrong.
    Appeal by Bella Ertheiler and another, as executors, etc., ■from an order of the Supreme Court, made at the New York Special Term and enteijed in the office of the clerk of the county of New York on the 12th day of December, 1910, reviving and. continuing an action algainst the appellants as executors, etc., of James Ertheiler, deceased.
    M. J. Stroock, for the appellants.
    
      Carl S. Stern,, for the respondents.
   Miller, J.:

This is an action for fraud and deceit. It is alleged that the appellants’ testator, a tobacco broker, induced the plaintiffs to sell a quantity of tobacco by falsely representing that the vendees were financially responsible.

Section 120 of the Decedent Estate Law (Consol. Laws, chap. 13 [Laws of 1909, chap. 18], added by Laws of 1909, chap. 240), which was practically a re-enactment of the Revised Statutes (2 R. S. 447, §1; Id. 448, § 2), provides as follows: “Eor wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action maybe brought by the person injured, or after his death by his executors or administrators, against such Wrong-doer, 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. This section shall not extend to an action for personal injuries as such action is defined .in section thirty-three hundred and forty-three of the Code of Civil Procedure; except that .nothing herein contained shall affect the fight of action-now existing to recover damages foi injuries resulting in death.”

That section seems too plain for construction. But a doubt seems to have been raised by a dictum of Judge Denio in Zabriskie v. Smith (13 N. Y. 322). A recovery by the plaintiff was sustained in that case, and although Judge DenIo said that the cause of action was not assignable, he did not refer to the -said provision of the Revised Statutes. In Haight v. Hayt (19 N. Y. 464) that provision was before the court, and Judge Denio, in his concurring opinion, pointed out that the test of survivorship prescribed by the statute was whether -the wrong was done to the property, rights or interests ” of the plaintiffs. The appellants assert that the cause of action does not survive against the personal representatives of the wrongdoer unless the latter profited by the wrong, but that contention is supported only by a dictum in Moore v. McKinstry (37 Hun, 194), in which a recovery was sustained, the case being distinguished from Zabriskie v. Smith on that point. Zabriskie v. Smith was cited in Hegerich v. Keddie (99 N. Y. 258), but that was an action for personal injuries. It has been squarely decided by this court, in this and the Second Department, that the test, of . survivorship is whether the injury is to pecuniary interests and that it is immaterial ¡whether the wrongdoer profited by the wrong. (Keeler v. Dunham, 114 App. Div. 94; Seventeenth Ward Bank v. Webster, 67 id. 228.)

The order should be affirmed, with ten dollars costs- and disbursements. j

■ Ingraham, P. J., McLaughlin, Scott and Dowling, JJ;, concurred.

Order affirmed, wit’

i ten dollars costs and disbursements.  