
    Samuel Purple v. Hudson River Railroad Company.
    A right of aetiou for injuries to the person is not assignable even when the injuries involve a breach of contract.
    The Code has made no other alteration in the law on this subject, than to permit an assignee to maintain an action in his own name where the cause of action is assignable at law or in equity.
    But the'provisions of the Code as last amended, are not limited to demands arising upon contracts, excluding all founded on torts.
    Every demand founded on a violation of the rights of property, real or personal, is assignable, and only those torts are excluded that die with the person.
    Judgment for the defendants upon a demurrer to the complaint affirmed, with costs.
    (Before Dueb, Campbell, and Bosworth, J.J.)
    October 10, 1854.
    
      Appear from a judgment for the defendants upon a demurrer to the complaint.
    The complaint and demurrer are in these words:
    The plaintiff complains of the defendants, and shows to the Court that the defendants are a body corporate, duly incorporated under the laws of the State of New York, and keeping an office for the transaction of business within the city of New York, and were •engaged in the transportation of passengers in cars, upon a railroad running from the village of Greenbush to Chambers street, in the city of New York. And at'the times hereinafter mentioned, owned said railroad and the cars running thereon, and had owned and employed steam engines to draw said cars to 81st street in said city, and horses to draw said cars from 81st street to Chambers street aforesaid, and had, and employed agents and servants to manage and conduct the said cars and the drawing the same as aforesaid.
    And this plaintiff further avers, that Minerva Purple did, on the 17th day of August, 1858, take passage in a train of cars so run by said defendants, to be carried from Greenbush to Canal street, in the city of New York, which is one of the usual intermediate stopping places of said train, and paid to said defendants the fare charged by them for such transportation; and the said defendants, in consideration thereof, then undertook to carry the said Minerva Purple to Canal street aforesaid, in their said cars, and there to land her. And the plaintiff further avers, that the said defendant did not land the said Minerva Purple at Canal street aforesaid, in compliance with their said contract and agreement, in a proper and reasonable manner, or otherwise than is hereinafter set forth.
    And this plaintiff further avers, that in the course of such transportation, the said Minerva Purple being in the proper place, and in the car in which she was directed to be by the agents of said defendants, and while landing at Canal street in a proper manner, and in pursuance of the directions of said defendants’ agents and servants, was violently thrown from said car into the street, upon the pavement; that said car started suddenly ahead while said Minerva Purple was landing therefrom, and before a proper and reasonable time had been allowed her to land, by which start she was thrown as above mentioned. And he further avers, that her being thrown as above mentioned, was caused wholly by the neg ligent, careless, and unskilful conduct of the servants and agents of said defendants, and without any fault or negligence on the part of said Minerva Purple.
    And the plaintiff further avers, that the said Minerva Purple was seriously injured by being thrown as aforesaid; that her thigh-bone, at or near the neck, was thereby broken and will never unite, so as to render the same serviceable; that she suffered great pain in consequence thereof, and was confined to her bed nine weeks, and is still unable to walk or use her left leg, and has been obliged to procure medical attendance and nursing, and to expend large sums of money, and that she was thereby, in other respects, severely bruised and injured in her body, and greatly alarmed in mind..
    And the plaintiff further avers, that the said Minerva Purple has heretofore by assignments, duly executed, under her seal, and for good and valuable consideration, assigned to the said plaintiff all her claim, demand, and cause of action against the defendants, by reason of the premises, and that he is now the lawful holder and owner thereof. Wherefore, &c.
    The defendants demurred to this complaint upon the following grounds:—
    1. That it appears from said complaint that there is a defect of parties to the action, in that Minerva Purple ought to be the plaintiff therein, in the stead of the said' Samuel S. Purple, the latter not appearing from the complaint to have any valid cause of action against these defendants. ■
    2. That the complaint does not state facts sufficient to constitute a cause of action in the plaintiff against the defendants, in that the alleged claim, demand, and cause of action of the said Minerva Purple, are not the legal subject of an assignment by her to the plaintiff.
    Mr. Justice Hoffman in allowing the demurrer at Special Term gave the following opinion:
    Hoffmah, J. — I do not find that the common law rule that a mere demand for damages to the person arising out of a tort is not assignable, has been overthrown. The case of Robinson v. Weeks, (6 Howard, Pr. Rep.,) in which the authorities are reviewed, settles indeed that a right of action for a tort in taking and converting personal property may be assigned; and the case put in Knight v. Quarles, (2 Br. and Bing.,) of injury horn careless driving of a stage-coach shows that an executor might sustain the suit. But I have not found a case going further than this.
    The court in Robinson v. Weeks, admit that the law is clear, that the right to damages for mere personal torts, such as assault and battery, slander, &c., dies with the person.
    Does the allegation of a contract with the defendants, to deliver her safely, vary the case? Of course it is the implied contract arising from their situation as carriers on the road.
    Justice Harris, in Hodgman v. The Western Railroad, (7 Howard, P. R. 492,) allowed a demurrer in a case entirely similar to the present.
    In Flinn v. The Hudson River Railroad Company, (6 Howard, 310,) he approves of the view of Justice Johnstone in Clor v. Mallory, (1 Code Rep. 310,) that though a contract may be involved in the action, it is really founded on the misfeasance or negligence of the defendants.
    I think this view is correct, and that judgment must be for the defendants on the demurrer.
    6r. I Betts, for the plaintiff,
    in moving for a reversal of the judgment, insisted that the cause of action upon which the complaint was founded, arose out of contract, and that its assignment was therefore legal, and the action properly brought in the name of the assignee. He cited Knight v. Quarles, (2 Brod. and Bing. 102,) Baker v. Liscor, (7 T. R. 171,) and Slater‘v. Baker, (2 Wils. 359.)
    
      W. Fullerton, contra,
    
    argued that although a contract was.involved, yet the real cause of action was for a tort, and therefore was not assignable. He cited 6 How. P. R. 161, id. 308; 7 How. P. R. 492.
   By the Court.

Duer, J.

It is evident upon reading this complaint, that the injuries to the person of M. Purple, as caused by the negligence of the servants of the defendants, are the gravamen, for which the damages claimed are sought to be recovered. The contract with the company is stated merely by way of inducement, as giving a more aggravated character to the negligence charged.

That a right of action for injuries to the person does not survive to an executor, is quite certain, and we agree with Mr. Justice Paige, (Hoyt v. Thompson, 1 Selden, 347,) that we find here the proper test of the assignability of a chose in action. It may be assigned if it would survive, and not otherwise.

It seems to be the opinion, from the cases brought before us, of many members of the profession, that the Code has abolished the distinctions that formerly prevailed, and that every right of action, no matter from what cause it may arise, is now assignable, so as to enable the assignee to maintain the action in his own name, in all cases whatever; but this is certainly an error, and is the very error which the addition made to § 111 of the Code, in the amendments of 1851 was designed to correct. The only alteration made by the Code, is to enable the assignee to maintain the action in his own name, in. those cases, and in those only, in which, by the law, as it existed when the Code was adopted, the right of action was assignable in law or in equity. The common law offences of champerty and maintenance are not wholly obsolete.

On the other hand, as the Code has not enlarged, neither has it restricted, the power of assignment; for we wholly dissent from the construction that some judges seem disposed to give to § 111 as amended in 1851, namely, that it is limited to demands arising out of contract, and forbids by implication the assignment of any founded on a tort. We hold, that every demand that is connected with a right in property, real or personal, and which claims redress for a violation of the right, is assignable, whether the violation is, technically speaking, a tort, or simply a breach of contract. And we think that this rule is a legitimate, if not a necessary deduction from the opinion of the Supreme Court as delivered by Cowen, J., in the case of the People v. Tioga C. Pleas (19 Wend. 73). The rule thus stated excludes only those torts that are so strictly personal, that they die with the person, and it corresponds exactly with the views of Mr. Justice Paige in Hoyt v. Thompson.

The demurrer in the case before us, as the cause of action stated in the complaint, is for a tort strictly personal, is well taken, and the judgment appealed from is therefore affirmed with costs. 
      
       The decision of the Court of Appeals in the recent case of McKee v. Judd, appears to have settled the law in conformity to the above opinion. (Rep. McKee v. Judd, 2 Kernan, 622.)
     