
    PHILIPPI against WOLFF.
    
      Supreme Court, First Department, First District;
    
      General Term, 1873.
    Cause op Action.—Husband and Wipe.—INSTANTANEOUS KILLING.
    An action may be maintained by a husband, in his right as such for damages sustained by him by being deprived of the society and assistance of his wife, by an injury caused by the defendant, although the injury caused her death, if her death was not immediate, so that he was deprived of her society and assistance even for a brief period between the injury and her death.
    The case of Green v. Hudson River R. R. Co. (2 Abb. Ct. App. Dec., 277), distinguished.
    A complaint which shows that she did not die till several days after the first injury is therefore sufficient.
    The consent of the wife to the procuring of an abortion on her does not preclude her husband’s action therefor.
    
    George Philippi sued Gabriel Wolff, in the supreme court, for causing the death of Ms wife by willfully and maliciously procuring an abortion upon her.
    
      The allegations of the complaint, in respect to time, was, that defendant, on March 10, 11, 13, 13 and 14, administered noxious drugs to her ; that in a few days subsequent to the first taking of these drugs, their evil effects became apparent; she was seized with convulsions, and, after lying in acute bodily pain and agony, died in consequence, and after the lapse of a few hours after taking of the drugs. That she came to her death on March 16, 1869, by the malpractice of the defendant, who then unlawfully procured an abortion upon her.
    Wherefore, plaintiff alleged that “he had been deprived of the comfort and services of his said wife, and that the shock occasioned Mm by the brutal treatment of his wife by defendant, and her death under said circumstances, has been and still is severe,” to the plaintiff’ s damage fifty thousand dollars.
    At the trial, before a justice of the court and a jury.! the action was dismissed, upon defendant’s motion, on the ground that the complaint did not state facts sufficient to constitute a cause of action.' The learned judge was of opinion that the sole cause of action alleged in this complaint was the wrongful killing of the wife, and upon the authority of the reported cases the action could not, therefore, be sustained.
    Plaintiff appealed to the general term.
    
      Phillip T. Smith, for the plaintiff, appellant.
    I. Insisted that under the allegations of the complaint plaintiff was already entitled to recover'for the loss of the services and comfort of Ms wife, during the time that she survived after the commission of the acts of malpractice (Lynch v. Davis, 12 How. Pr., 323 ; Green v. Hudson River R. R. Co., 16 Id., 230; Same v. Same, 2 Keyes, 294 ; Lucas v. New York Central Railroad, 21 Barb., 245).
    II. The action might be maintained as founded on a breach of the obligation implied in the employment of the defendant as a physician, and the right of action was vested in the plaintiff as the husband of his wife.' The contract to perform his professional duty in a skillful manner was made with the husband, and not the wife, and the husband was certainly bound to pay the defendant for the services rendered, or which ought to have been rendered by him. In an action founded on this breach of duty the husband can recover the damages sustained by reason of the loss of the society and aid of his wife (Lynch v. Davis, 12 How. Pr., 323).
    
    III. If, on analyzing a complaint, the whole or any part of the facts can be resolved into a cause of action, a demurrer should be overruled (People v. Mayor of N. Y., 8 Abb. Pr., 7 ; S. C., 28 Barb., 240 ; Buzzard v. Knapp, 12 How. Pr., 504).
    
      Samuel Hirsch, for defendant, respondent.
    I. The defendant had a right to demur, for the ground that the complaint does not state facts sufficient to constitute a cause of action, even on the trial; notwithstanding the answer theretofore served (Code of Pro., § 144, subd. 6, § 148 ; Coffin v. Reynolds, 37 N. Y., 640 ; Higgins v. Freeman, 2 Duer, 650 ; Gould v. Glass, 19 Barb., 179, 186 ; Budd v. Bingham, 18 Id., 494 ; Burnham v. De Bevoise, 8 How. Pr., 160).
    ■ II. At common law a husband cannot maintain an action for causing the death of the wife (1 Camp., 493 ; 1 Cush., 475 ; 9 Id. 109, 480 ; Lucas v. N. Y. Central R. R. Co., 21 Barb., 245 ; Green v. Hudson River R. R. Co., 28 Id., 9).
    III. The right of action, if any exi.sted, is granted by statute, and the statute must be followed by the plaintiff aggrieved (L. 1847, p. 575, ch. 450, amended by L. 1849, p. 388, c. 256. See cases cited above, and also Safford v. Drew, 3 Duer, 627 ; Quinn v. Moore, 15 N. Y., 432).
    IV. Plaintiff’s wife, if .living, could not have maintainecl an action.' 1. The plaintiff’s right of action depends upon the right of deceased, if living, to bring the action for the injury {L. 1847, above cited). 2. Assuming that an injury was done by negligence or tort of the defendant, the assent of thó deceased would deprive her of any right of action (Nellis v. Clark, 4 Hill, 424 ; Mosely v. Mosely, 15 N. Y., 334 ; Gray v. Hoop, 4 Id., 449 ; De Groot v. Van Duyer, 20 Wend., 390 ; Leavitt v. Palmer, 3 N. Y. [3 Comst.], 19).
    
      
       S. P., Hoard v. Peck, 65 Barb., 202.
    
   By the Court.—Ingraham, P. J.

[After briefly referring-to the pleadings.]—There can be no doubt as to the rule, both in the courts of England and this country, that a husband cannot maintain an action for killing his wife, where the death is immediate, whether such killing arises from wilfullness or negligence. The case of Green v. Hudson River R. R. Co. (2 Abb. Ct. App. Dec., 272), is an authority on this point, and refers to various cases establishing the same.

I think it is equally clear, that where a cause of action would exist if the wife had lived, then if she survives after the injury even for a few days, the husband may maintain an action for the loss of the society and services of the wife during that time. This was stated in Lynch v. Davis (12 How. Pr., 323), although in that case the action was by the administrator under the statute.

The justice says : The common law gave the husband a right to recover the pecuniary injury he had sustained by reason of the killing of his wife.’’ In that case the husband had recovered his damages besides what he could recover under the statute.

The consent of the wife to the treatment was not a consent to be ignorantly or negligently treated, nor would it deprive the husband of his claim for damages occasioned thereby. As stated in the complaint, the act was not only one of wrong, but of crime. Although criminal under our statute, the right of action for damages was not merged.

I see no reason why the plaintiff should not recover the damages which he is entitled to for the period of time which his wife lived after the drugs were administered. They may be small, but nevertheless are recoverable under the complaint.

Brady, JY, concurred.

Judgment reversed and new trial ordered, costs to abide the event.  