
    LOUISA PESSINI, as Administratrix, &c., Appellant, v. WILLIAM H. WILKINS, as survivor, Respondent.
    
      Action for causing death—Abatement of by death of defendant.
    
    The cause of action given by the statute (Chap. 450 L. 1847 ; Code Civ. Proc. § 1902), to the representative of a decedent, whose death was caused by the negligence of another, abates upon the death of the wrong doer, unless the plaintiff can show that at the time, of such death there was remaining in force a verdict or decision in his favor.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided December 30, 1886.
    Appeal by Ann E. Wilkins, as executrix, &c., of William H. Wilkins, deceased, from an order made at special term continuing this action against her as executrix.
    The facts appear in the opinion.
    
      Robinson, Scribner & Bright, attorneys, and John M. Scribner, of counsel for appellant:
    I. The cause of action given by the statute (Chap. 450, Laws 1847; Code of Civ. Proc. § 1902) to the representatives of a decedent whose death was caused by the negligence of another abates upon the death of the wrong doer, and an action cannot be maintained against his representatives (Hegerich v. Keddie, 99 N. Y. 258).
    H. Section 764 of the Code does not touch this case. It relates only to “ an action to recover damages for a personal injury.” This is strictly an action under the statute to recover damages for death caused by wrongful act, &c. (Code, § 1902). The distinction between such an action and one brought by the party himself for personal injuries sustained is clearly set forth in Hegerich v. Keddie (supra). See also definition of personal injury in section 3343 Code Civ. Proc.
    HI. Section 764 of the Code only allows an action to which it relates to be continued after a verdict, report or decision in favor of the plaintiff (Kelsey v. Jewett, 34 Hun, 11).
    
      James T. Byrne, and Benjamin F. Estes, for respondent:
    I. The plaintiff is entitled,-as matter of right, to the order appealed from, under section 764 of the Code. It was the undoubted intention of the legislature to provide that where an action had been commenced in the lifetime of the tort feasor, and had been prosecuted in good faith to a judgment or decision, the cause of action should not abate but should Survive, making it an exceptional case.
    II. The case of Hegerich v. Keddie (99 N. Y. 259), is not in point nor at all analogous to the one at bar. That action was not brought against the wrong doer, but was commenced in the first instance against his executor. Section 764 was not under consideration, and no construction was given to it; there had been no trial, judgment, decision or report, and the appeal was from an order sustaining a demurrer to the complaint.
   Bt the Cohet.—Freedman, J.

This action was brought under the statute against Jesse A. Marshall and William H. Wilkins, as co-partners, to recover damages alleged to have been sustained by plaintiff by reason of the death of her infant son which was caused by the alleged negligence of the driver of one of the defendants’ stages. After issue joined, and before trial, Marshall died, and the action was continued against Wilkins as the survivor of the firm. There were two trials of the issues. At the first trial, had in November, 1884, the jury disagreed. At the second trial, had in January, 1885, the plaintiff was nonsuited, and judgment was thereupon entered dismissing plaintiff’s complaint. From this judgment plaintiff appealed to the general term, but before her appeal could be argued, and indeed before the proposed case and the amendments thereto were settled, Wilkins, then the sole surviving defendant, died. This occurred in January, 1886.

Under the decision of the court of appeals in Hegerich v. Keddie (99 N. Y. 258), it must be held that, upon Wilkins’ death, the cause of action given by the-statute (Ch. 450 Laws 1847; Code Civ. Proc. § 1902), to the plaintiff for the death of her infant son, abated, unless it was saved by section 764 of the Code of Civil Procedure.

That section reads as follows, viz.: After verdict, report, or decision, in an action to recover damages for a personal inj ury, the action does not abate by the death of a party, but the subsequent proceedings are the same as in a case where the cause of action survives.”

The learned judge who made the order appealed from, seems to have conceded the effect of the authority of Hegerich v. Keddie (supra), to be, that plaintiff’s cause of action did not survive the death of Wilkins, but he decided, nevertheless, that under § 764 the action has not abated. This decision cannot be sustained.

In Kelsey v. Jewett (34 Hun, 11), the general term of the supreme court of the fifth department, said: “In our opinion, if a verdict for a personal injury is set aside, then the cause of action abates if the plaintiff dies before another trial is had, and the sole purpose intended to be accomplished by the provisions of § 764 is to save the estate of a deceased party the verdict, report or decision, which may have been rendered in his favor before his death. After a verdict or decision has been set aside as void or erroneous, the case stand t the same as if none had been rendered, the issues being untried and undetermined.”

This was said in a carefully considered opinion, and after a full examination I can perceive of no reason why this court should come to a different conclusion. From this it follows that if the construction of § 764 adopted in Kelsey v. Jewett was correct upon the facts of that case, the plaintiff in this case was bound to show that, at the time of the death of Wilkins, there was remaining in force a verdict or decision in her favor. This she did not do. On the contrary, the only thing she did show, was a decision against her.

The order appealed from should therefore be reversed with ten dollars costs and disbursements, and the motion for the continuance of the action denied with ten dollars costs.

Sedgwick, Ch. J., concurred. '  