
    Benjamin Daniel, Appellant, v. The Brooklyn Heights Railroad Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1912.)
    Abatement and revival — death of party — what causes of action survive.
    Where an action against a street railway company to recover damages for an assault on a passenger is based upon an alleged breach of contract to safely carry, the cause of action, upon the death of plaintiff, survives to his estate.
    Appeal by the plaintiff from a judgment of the Municipal dourt of the city of Hew York, borough of Manhattan, second district, dismissing the complaint on the ground that the action had 'abated by reason of the plaintiff’s death.
    Barnett E. Kopelman, for appellant.
    George D. Yeomans (James W. Carpenter, of counsel), for respondent.
   Gebaed, J.

The- complaint alleges that the plaintiff became a passenger upon one of defendant’s cars and paid his fare; that in consideration of such fare the defendant promised and agreed to carry this plaintiff upon its cars and to treat him properly, carefully and with all respect due him as such lawful passenger and that while the plaintiff was such a passenger the defendant herein, through its agents, wrongfully, illegally and in violation of the terms of said contract, violently assaulted and struck the plaintiff and otherwise ill treated him and by reason of the premises he suffered humiliation, wounded pride and disgrace and injuries to his feelings, became sick, sore and disabled, was for a time compelled to be laid up in bed and expended money for medicines and medical treatment and was for a time unable to earn his usual livelihood to his damage in the sum of $500.

At the previous trial there was a verdict in favor of the defendant and upon appeal a new trial was ordered and the judgment reversed. See the opinion of Mr. Justice Lehman, 67 Misc. Rep. 78.

After the reversal and before the second trial, the plaintiff died. Plaintiff’s attorney made a motion to continue the action in the name of the administratrix, which motion was granted. At the second trial the plaintiff’s attorney offered in evidence the testimony of the decedent taken at the first trial. This was rejected, and after proof of the death of Benjamin Daniel, the original plaintiff, the action was dismissed.

There is only one question involved in this appeal and that is, whether the cause of 'action set forth died with the plaintiff, or survived to his estate.

The plaintiff endeavors to bring this action within the class of actions which survive by alleging that it was brought for a breach of contract to carry safely.

In Kentucky, where a cause of action for assault does not survive, it was held in Winnegar’s Administrator v. Central R. R. Co., 85 Ky. 547, that, where the action is laid in contract for breach of the contract to carry safely, such an action does survive. This case was cited with approval but not on this point in Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347, 358.

It was held in the previous appeal of this case, following Busch v. Interborough R. T. Co., 187 N. Y. 388, that, although a Municipal Court has no jurisdiction of an action for assault, yet when the assault is committed on a passenger and the action is laid in contract, as here, the Municipal Court has jurisdiction.

Bradshaw and Wife v. R. R. Co., L. R. (10 C. P.) 189, was an action by the personal representative of a person killed in a railway accident brought to recover for injury to decedent’s estate by reason of his inability to attend to business, for medical attendance, etc., before his death. It was there held that such an action would lie, although an action might lie also under Lord Campbell’s Act, for the death. This case is cited in Hegerich v. Kedidie, 99 N. Y. 269, the court referring to the Bradshaw case saying, the action was there based upon the theory of a breach of contract to carry the passenger safely.” The action at bar is based on an .alleged breach of contract and brought to recover the damages caused thé estate of or property interests of decedent before his death.

We think this cause of actiori survives and the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Seabuby and Guy, JJ., concur.

Judgment reversed.  