
    Sarah Emily Smith, as Administratrix, etc., Pl’ff, v. Metropolitan Street Railway Company, Def't.
    
      (New York Common Pleas, General Term,
    
    
      Filed December, 1895.)
    
    1. Death by wrongful act—Accruing from cause of action.
    In an action for death by wrongful act, the cause of action accrues at the date of death and not at the date of injury. /
    
    2. Same.
    Where the death, occurs after the constitution of 1895 has removed the limitation of the amount recoverable, an action to recover damages therefor is within the constitutional provision, though the injury was sustained before it went into effect.
    Motion to reduce the damages alleged in the complaint.
   Pryor, J.

(orally).—The action is by an administratrix for the negligent killing of her intestate. It appears that the injury was sustained by the intestate on the 30th December, 1894, and that his death occurred on the 2d January, 1895. The -question is whether the recovery be limited to $5,000, as by the law m force on the 80th December, or be unlimited, by virtue of the constitution ■of 1895. That constitution went into effect the 1st January, 1895. The law limiting the recovery does not apply, because the cause of action did not accrue while that law was in operation. The cause of action is not the injury, but the death of' the intestate; and that death occurred after the new constitution went into effect. Had there been no death, there could have been no such action. The injury might have been 'the foundation of an action by the injured party, had he lived. These causes of action not only inhere in different parties, but proceed upon different grounds,— one for a wrongful injury, the other for a wrongful killing. The latter is not a survival of the former on the death of injured person, but is another and independent action, founded upon an event subsequent to the injury, and prosecuted by another plaintiff for the violation of a right appertaining to him, and not to the intestate. The death of the intestate being the ground of action, and occurring after the old law was abrogated by the new constitution, there is no limit to the amount of recovery.

It results that the motipn must be denied.  