
    Louis Pessini, as Adm’rx, etc., Resp’t, v. William H. Wilkins, as survivor, etc., Appl’t.
    
      (New York Superior Court, General Term,
    
    
      Filed December 31, 1886.)
    
    1. Abatement—When action abates on death op party.
    An action was brought under the statute against two co-partners to recover damages alleged to have been sustained by reason of the death of plaintiff’s son, by the driver of a stage belonging to the co-partners. One of the partners died before the trial. On the trial plaintiff was non-suited, and from the judgment dismissing the complaint an appeal was taken. Afterward and before the appeal was argued, the sole surviving partner died. Held, that the cause of action abated with the death of the surviving partner.
    2. Same—Code of Crv. Pro., § 764.
    
      Held, That Code Civ. Pro , § 764, only applies where there is remaining in force at the time of the death a verdict or decision in favor of the party desiring to continue the action.
    Appeal by Ann E. Wilkins, as executrix, etc., of William H. Wilkins, deceased, from an order made at special term continuing this action against her as executrix.
    
      John M. Scribner, for app’lt; Benjamin Estes, for resp’t.
   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 defendant’s 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 non-suited 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 amendment thereto were settled, Wilkins, then the sole surviving defendant, died. This occured 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 Wilkin’s death the cause of action given by the statute (chap. 450 of Laws 1847, Code of Civ. Pro., § 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 read as follows, viz.:

Section 764. 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.

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 section 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 that the sole purpose intended to be accomplished by the provisions of section 764 is to save the estate of a deceased party to a 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 stands 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 section 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 a continuance of the action with ten dollars costs.

Sedgwick, Oh. J., concurs.  