
    Sarah Emily Smith, as Administratrix, Plaintiff, v. The Metropolitan Street Railway Co., Defendant.
    (New York Common Pleas—Trial Term,
    December, 1895.)
    1. Negligence—Damages.
    The cause of action in favor of an administrator .for the negligent killing of his intestate is the death of the intestate, and not the injury, and is governed by the law in force at the time of the death.
    3. Same. ■ .
    Where the injury occurred before; and the death after, the new Constitution went into effect, there is no limit to the amount of the recovery.
    Action to recover damages for the negligent killing of .the plaintiff’s intestate.
    In the progress of the trial defendant moved to reduce.the claim of damages in the complaint from $20,000--to $5,000.
    
      H. A. Robinson, for motion.
    
      Blackwell Bros., opposed.
   Pryor, J.

(orally). The action is hy, an administratrix for the negligent killing of her intestate. It appears that the' 'injury was sustained hy the intestate on the 30th of December, 1894, and that .his death occurred on the 2d of January, 1895. "The question is, whether the recovery be limited to $5,000, as by "the law in force' on the 30th of December, or be unlimited by the virtue of the Constitution of 1895. That Constitution went into effect the 1st of January, 1895.

The law limiting the recovery does not apply, because the ' cause of. action did -not accrue -while that law was-in operation. The cause of action is not the in jury, but the .death of the intestate; and that death occurred after the new Constitution went into effect. Had there been no death there could have been no such action. The injury might have been the foundation of an action by the injured party had he lived. These causes of action not only inhere in different parties but proceed upon different grounds — one for a wrongful injury, the other for a - wrongful killing. The latter is not a survival of the former on the death of the injured person, but is another and independent action, founded upon an event subsequent to the injury, and prosecuted by another plaintiff for the violation of a right appertaining to him, and not to the intestate. The death of the intestate being the ground of action, and occurring after the old law was abrogated by the new Constitution, there is no limit to the amount of recovery.

It results that the motion must be denied.

Motion denied.  