
    James S. Hart, App’lt, v. William L. Washburn, Ex’r, et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    Abatement and kbvtvor—Appeal prom judgment against trustee op-MANUFACTURING COMPANY.
    Pending an appeal from an order setting aside a default in an action against the trustee of a manufacturing company for failure to file an annual report, the defendant died. Held, that as the parties were litigat- . ing over the judgment entered in the action, the death of the defendant did not operate to abate the action, whatever it might do if the parties were litigating over the original cause of action, and that an order reviving the action against his executors was properly granted.
    
      (Carr v. Rischer, 119 N. Y., 123; 28 St. Rep., 260, followed.)
    Appeal from order reviving this action against the executors of the original defendant.
    
      Wm. S. Andrews, for app’lt; H, G. Wood, for resp’ts.
   Van Brunt, P. J.

This action was brought to recover a liability imposed by the act of 1848 for the failure of the defendant to make and file the annual report of a mining company, of which the defendant was a trustee. A judgment was entered by default in favor of the plaintiff against the defendant, and a motion was made to open this default, which was granted. An appeal was taken to the general term, and pending this appeal the defendant died. A motion was then made to revive the action against the executors, which motion was granted, and from the order thereupon entered this appeal is taken.

It is claimed upon the part of the appellant that the motion should have been denied, because the action being for a penalty imposed by statute died with the person, and cannot be revived against the executors of the defendant.

- It is not necessary to discuss the propositions that the cause of action is penal in its nature, and abates with the death of the defendant. But in the case at bar the plaintiff had already acquired a judgment. It is true that that judgment had been set aside, but he had appealed from the order setting aside the judgment to the general term, and that appeal was pending; and as far as that appeal was concerned, the litigation was over the judgment and not over the original cause of action, thus bringing the case precisely within the terms of Carr v. Rischer, 119 N. Y., 123; 28 St. Rep., 260, in which case a trial had been had,” a verdict rendered and a judgment entered, from which judgment the defendant had appealed to the general term, where the judgment was reversed and a new trial granted, and an appeal taken from the order of ¡reversal, and then the defendant died. A motion was then made to dismiss the appeal in the court of appeals, upon the ground that the action had abated by death, and that court held that the wrdng was merged in the judgment, and that the reversal of the judgment did not strike the judgment out of existence, inasmuch as the judgment might be restored upon appeal to that court, and that the action might be continued for that purpose.

In the case at bar, it is true that the judgment had been set .aside by the order of the special term, opening the default, but an appeal was pending from that order, and that judgment might be reinstated upon that appeal, as has been done by the decision of this court, handed down herewith.

Under the principles laid down in the case cited, the plaintiff had a right to continue the action against the personal representatives of the defendant for the purpose of ascertaining whether or not that judgment could not be restored upon appeal. We see no distinction whatever between the case and the principle which controls, which is that the wrong having been merged in the judgment, so long as the parties are litigating-over the judgment, death does not operate to abate the action, whatever it might do when the parties are litigating over the-original cause of action.

The order appealed from should be affirmed, with ten dollars-costs and disbursements.

Patterson, J.

I concur. There was a property right in the-judgment, and the case is directly within the ruling in Carr v. Rischer, as is pointed out in the opinion of the presiding justice.  