
    Walter R. Molloy, an Infant, by William H. Gardner, His Guardian ad Litem, Appellant, v. John H. Starin (Deceased), Respondent.
    First Department,
    November 19, 1909.
    Survival of action — negligence — death of defendant after reversal of judgment for plaintiff.
    Where the judgment in an action to recover damages for negligence has been “reversed, annulled and altogether held for nothing ” by the Court of Appeals, and a new trial has been ordered, the action abates if the defendant die before a new trial resulting in a verdict, report or decision in the plaintiff’s favor.
    Appeal by the plaintiff, Walter P. Molloy, an infant, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 18th day of June, 1909.
    
      Jonathan Deyo, for the appellant.
    
      Dickinson W. Richards, for the respondent.
   Scott, J.:

This is an appeal by plaintiff from an order denying his motion to revive the action against the executor and executrix of John II. Starin, deceased. The action sounds in tort being for damages for what is claimed to have been Starin’s negligence. Upon the first trial of the cause plaintiff recovered a verdict which was reversed by this court (113 App. Div. 852). Upon a second trial plaintiff again recovered and his judgment was affirmed by this court. (119 App. Div. 884). An appeal was taken to the Court of Appeals, which reversed the judgment and ordered a new trial (191 N. Y. 21), the judgment being “reversed, annulled and altogether held for nothing.” The order upon the remittitur from the Court of Appeals was entered January 29,1908. Before another trial was liadj and on March 23, 1909, John II. Star in died, and the question here is whether or not the cause of action survived his death. The plaintiff relies upon section 764 of the Code of Civil Procedure, which r.eads as follows : “ After verdict, report or decision in an action to recover damages for a personal injury, 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. And in case said verdict, report or decision is reversed upon questions of law only, said action does not abate by the death of the party against whom the same was rendered.” The plaintiff’s reliance is upon the last sentence of the section which was added in 1890, which as he contends, provides for the survival of a cause of action for tort, and a revival of the action against the executors of the tort feasors, even if at the time of his death there was no judgment extant against him. We cannot agree with this construction of the statute. It was repeatedly held that the section of the Code as it stood before the amendment of 1890 did not operate to prevent the abatement of an action in which a judgment had been rendered, but had been reversed before the death of a party. By its terms it operated only upon judgments which were outstanding when the party died, and then did not authorize a new trial in case of reversal. (Stringham v. Hilton, 111 N. Y. 188; Carr v. Rischer, 119 id. 125; Lutz v. Third Ave. R. R. Co., 44 App. Div. 256.) The amendment of 1890 provides for a case in which “ said verdict, report or decision is reversed,” thereby showing plainly that it was intended to apply only to cases in which there was an existing judgment when the party died, which was reversed after his death. This is the construction put upon the section as it now stands by the Appellate Division in the Second Department in Hughes v. Russell (113 App. Div. 744). With the conclusions arrived at by that court we entirely concur. In the present case there was no judgment outstanding at the time of Starin’s death, and section 764 has no application. This view is confirmed by the language of section 765. “ This title does not authorize the entry of a judgment against a party who dies before a verdict, report or decision is actually rendered against him. In that case the verdict, report or decision is absolutely void.” The former judgment against Starin was absolutely wiped out by its reversal by the Court of Appeals. It was “ altogether held for nothing.” The plaintiff and Starin stood towards each other, when the latter died, precisely as if no judgment had ever been rendered in the action. If none had ever been rendered no one would argue that the cause of action survived by reason of section 764. The order appealed from is affirmed, with ten dollars costs and disbursements.

Ingraham, McLaughlin, Laughlin and Clarke, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  