
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiffs and Respondents, v. LUCINDA STARKWEATHER, Administratrix of HENRY STARKWEATHER, Deceased, Impleaded, &c., Defendant and Appellant.
    I. REVIVOR OF ACTION.
    1. No change in law as to, since the E. S'., except an extension by the Code of a right to a revival, before as well as after trial or interlocwt®ry judgment.
    
      (a) Test as to whether the action can be revived.
    
    1. Both under the R. S. and the Code the test is whether the cause of action survives.
    H. SURVIVORSHIP OF CAUSE OF ACTION. —ABATEMENT.
    1. Test of.
    
      (a) Whether the action might be originally brought against the executors.
    3. What cause of action survives.
    
      (a) Contract. Where the cause of action is money due, or a contract to be performed, or gain, or acquisition by the labor or property of another, or on a promise, express or implied, by the deceased, there it survives.
    
      (b) Wrongs. Where the cause of action is for wrongs to property, rights, or interests, an action may be brought against the representative. § 1, art. 1, title 3, chap. 8, pt. 3, B. S.
    
    Such a cause of action survives.
    in. PEOPLE OF THE STATE OF NEW YORK, RIGHT OF ACTION IN FAVOR OF: AND SURVIVORSHIP THEREOF.
    1. Law of 1875, chap. 49 (Peculation Act), gives the people a right of action for any money or property owned officially by any municipal corporation which has without right been obtained, received, converted, or disposed of, and for any damages by reason of such obtaining.
    
      (a) “ Without right f effect of the words.
    
    1. Notwithstanding these words, the action maybe regarded as founded on an implied contract, and the people may waive the tort, and bring their action on contract; but even if it is essential under the act to bring the action in tort basing it on fraud or deceit, or on some other wrong, it would be a wrong to property, rights, or interests; and in either aspect, under above principles, the cause of action would survive, and the People would be entitled to revive against the representative of a deceased defendant.
    
    Before Monell Ch. J., and Sedgwick, J.
    
      Decided March 20, 1876.
    Appeal from an order, heard at the March general term, 1876.
    After issue joined, and before trial, the defendant died. A motion was made at special term to continue the action against his representative, which was granted, and the action was, by order, continued against Lucinda B. Starkweather, administratrix of the deceased.
    The administratrix appeals from the order.
    
      S. P. Nash, of counsel for appellant, urged:—
    I.—The action is a statutory one, and therefore did not survive, especially as the act creating the right to sue does not embrace the personal representatives of the defendant (Bank of California v. Collins, 5 Hun. 12 ; N. Y. Supreme, 209). That the People had no right of action before the statute, is settled in People v. Ingersoll (58 N. Y. 1). The action provides that the People “shall have a right.of action,’’ and enlarges, in respect to such right of action, the statutory limitation of six years'to ten (Laws of 1875, 43, 4). The moneys sued for do not belong to the plaintiffs. The act does not transfer to the People the title or owner-shin of the money, the want of which was held in 58 N. Y. to be fatal to an action in the name of the People. The action is maintainable since the change of the law, not because the People has the title and ownership of the money any more than it did, but simply because the act says the People may bring the action.
    II. —The action is framed as an action for fraud and conspiracy, and therefore does not survive (Zabriskie v. Smith, 13 N. Y. 322; Wade v. Kalbfleisch, 58 Id. 282). The question whether actions other than those arising on contract survive, depends upon the statute, 2 R. S. 447, § 1. ee For wrongs done to the property, rights, or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured against such wrong-doer, and after his death, against his executors,’’ &c. By the statute the right of action is made to survive in favor of the 66 person injured,” which, in this case, is not the plaintiffs herein. That the action is one for fraud is apparent from the allegations of the complaint, that Starkweather, knowing he had no right to receive the money claimed, represented that he had, and fraudulently agreed with the city authorities to pay him notwithstanding. These are substantially repeated in reference to several of the causes of action, and in reference to the first cause of action, it is alleged, in order to avoid the statute of limitation, that “ the facts constituting the said fraud ” were not discovered prior to-six years before suit brought.
    III. —But if the action is to be treated as an action on contract, and as surviving, the order to substitute the administratrix as defendant should have been on the terms of plaintiffs’ striking out all allegations of fraud. Such allegations are purely irrelevant, if they do not change the character of the cause of action. The administratrix ought not to be put to the defense of charges of this character, if they are in no way relevant to plaintiffs’ right of recovery.
    
      
      Charles S. Fairchild, attorney-general, and Francis C. Barlow, of counsel for respondents, urged:—
    I.—Section 121 of the Code provides for the revival of ' actions when the cause of action survives. There is no possible doubt that this cause of action does' survive. Every cause of action survives which is brought to recover property of the plaintiff which has been received by the defendant. It makes no difference whether it was received or obtained by fraud or wrongdoing, or under a contract. The simple test is, has the act on which the action is founded increased the assets of the estate ? It is only bare-naked torts, which have not added to the wrong-doer’s assets, which do not give a continuing or surviving cause of action. The fact that the goods were obtained by fraud does not affect the case. It is enough to say that the defendant has got the plaintiff’s money (U. S. v. Daniels, 6 Howard [ U. S. R.] 11; Cooper v. Crane, 4 Halstead [Law R.], per Ewing, C. J., 177; Hambly v. Trott, Cowper, R., per Mansfield, Ch. J., 374 and 375; Wilbur v. Gilmore, 21 Pick., per Morton, J., 252).
    II. —The defendant insists that this is an action of tort, going upon the fraud and false representations. As above explained, it would make no difference if it were ; but it is not. There are six causes of action. The only suggestion of fraud or deceit is at the close of the first cause of action, and that clause was inserted, not as a fact giving the right of action (as is shown by the fact that no such allegation is made in the other causes of action) but simply as a means of avoiding the bar of the statute of limitations which had run against the first claim.
    III. —But if it were otherwise, and the acts done were charged to have been done fraudulently and deceitfully, it would not make this action an action for a tort. The acts set forth give a cause of action, if there be any, and their legal effect is the same whether' they are charged to be fraudulent or not. Applying this adjective makes the facts neither more nor less efficient. It is mere surplusage. The point is that the acts themselves are not acts of fraud or deceit. Their character is not changed by the addition of an abusive epithet.
    IV.—But even in cases where the acts are fraudulent, and acts of deceit, it does not follow that a statement of those acts (under our present system of pleading, where forms are abolished, and only a statement of the facts is required) constitutes an action of tort. Where your money is obtained by fraud and falsehood, you may either sue directly for the money, or for damages for the fraud. See Artisans’ Bank v. Andrews, 26 N. Y. 298, and Denio, Ch. J., 300, 301; Gen. T. Supreme Court in Harway v. The Mayor, &c., 1 Hun, 628, and the cases there cited.
    V.—And lastly, even if this were an action of tort, our statute expressly provides that it shall survive. See 3 R. S., 5th ed., page 746, §§ 1 and 2. As to this statute, see Haight v. Hayt (19 N. Y. 464, and per Grover, J., 467, 468, and Brown, J., 474). The statute is also considered by the court of appeals in Wade v. Kalbfleisch (58 N. Y. 282), and in Emerson v. Bleakley (5 Abb. [N. S.] 361, 362). It was overlooked in Zabriskie v. Smith, 13 N. Y. 322 (see 25 How. 286), but the case in 13 N. Y. was a mere naked tort, which did not increase the assets of the defendant. See also Fried v. New York and Central R. R. Co. (25 Howard, 28).
    VI.—The objections from the statute of 1875 (chap. 49) are equally absurd. The act does not create any cause of action, but simply gives to one civil division (the state) the right to sue for injuries done to another. That is its sole object. The cause of action would have survived to the city under the general provisions of law before referred to, and this being so, there is not the slightest indication that the law of 1875 was intended to restrict the remedy only to the original wrong-doer. Plainly, its only object was to transfer the right of suing to the state.
    VII.—But the objection, under the law of 1875, would be equally unavailable even if the statute created the liability. Suppose it does create a liability against the wrong-doer, then, by the statute above cited, it may be brought against his executor. “ For wrongs for which an action might be brought against a wrong-doer (and unless this law be unconstitutional, it certainly authorized an action against Starkweather), such action may be brought against his executor,” &c. Those cases which hold that statute penalties do not survive, have no application. The incurring of a penalty does not increase the assets of the wrongdoer.
   By the Court.—Monell, Ch. J.

The Code (§ 121) provides that no action shall abate by the death of a party if the cause of action survive or continue ; and the only question before the special term and upon this appeal is, whether the cause of action, as stated in. the complaint, ceased with the death of the defendant.

Upon that question there has been no change in the law since the adoption of the Revised Statutes. The Code has merely extended the right to a revival of the action before as well as after trial or interlocutory judgment. Under the Revised Statutes, if the death of a sole defendant occurred before trial, the action abated, and a new action had to be commenced against the representatives.

But whether under the Revised Statutes or under the Code, the question is the same, namely, whether the cause of action survives.

This action is prosecuted under the authority of a special statute (Laws 1875, chap. 49), which provides, that where any money or property owned officially by any municipal corporation has, without right, been obtained, received, converted, or disposed of, the People shall have a right of action for the same, and for any damages by reason of such obtaining, &c.

The cause of action specified in the statute is the wrongful obtaining of the money or property of a municipal corporation: and,—leaving out the tortious taking,—is a mere action for money had and received to the use of the corporation. And the only benefit of the statute is to enable the People to maintain the action, which previously to the statute could not be done (People v. Ingersoll, 58 N. Y. R. 1).

It is not of much importance to determine whether the tortiqibs taking is or is not an essential element in the cause of action, except perhaps as it may affect the status of the plaintiffs. Money or property of a municipal corporation received by one of its officials or agents must be deemed to have been received and to be held by such agents to the use of the corporation, who, ordinarily, may maintain an action for its recovery without alleging a tortious taking. But the right of action being conferred by statute, it can not be extended beyond the cause of action specified in the statute, and probably must conform strictly with the statute.

The cause of action specified in the statute is one which does not cease with the death of the official or agent charged with having obtained the money of a municipal corporation. Whether he obtained it without right;” or having obtained it rightfully, withheld it wrongfully, it was the money of his principal, held by him to his principal’s use, and as such became assets in the hands of his representatives.

Notwithstanding the words in the statute without right, ” the action may be regarded as one founded on an implied contract, which arises from the relation of the defendant to the corporation, under which, having received the money or property of the corporation, the law will imply a promise to pay. And even, therefore, if a wrongful taking was an essential ingredient, there could be no good reason why the People might not, as in other cases, waive the tort, and demand a recovery upon the implied promise.

The test mentioned in the Revised Statutes concerning the abatement of suits (2 R. S. 387, § 3), that it shall not abate, if the action might be originally brought against the executors of the defendant, when applied to the cause of action upon or for which the People is authorized to prosecute, détermines, it seems to me, the whole question.

Can it be doubted that for such a cause of action a suit might have been originally brought against the defendant’s executors ?

The distinction between actions which survive and such as die with the person is defined in Hambly v. Trott (Comp. 371). Where the cause of action is money due, or a contract to be performed, or gain or acquisition by the labor or property of andther, or on a promise expressed or implied by the testator, the action survives ; otherwise, if it is a tort. And in Franklyn v. Low (1 J. R. 396) the distinction was preserved, and the survivorship of actions confined to actions ex contraetu express or implied.

That decision, however, was before the Revised Statutes, to which I shall presently refer.

If the cause of action mentioned in the act of 1875 is such that it would survive against the representatives of a deceased defendant,- then it remains only to see whether the cause of "action as stated in the complaint is the same.

The allegations in the complaint are, in substance, that the defendant was the head of the bureau for the collection of assessments in this city, clothed with the duty of collecting the assessments charged for the improvement of real-estate, and the paying over of the moneys collected to the city chamberlain. That, by ordinance, the collector was to receive as compensation a specified percentage of the money collected, but no moneys collected on any assessment could be retained on account of such compensation, but that such compensation should be paid on the requisition of the street commissioner to the extent of any money which had been collected and paid into the city treasury. It is then alleged that in sundry assessment-lists for improvements large amounts were charged to the city of New York, which were not such assessments as entitled the defendant to any compensation thereon. That notwithstanding, the defendant made bills or vouchers therefor, and obtained and received from the city his percentages thereon. That the officers paying such sums had no right or authority to pay, and did so in violation of law. All of which the defendant well knew. Fraud and deceit on the part of the defendant in receiving, and of the officers in paying, is also alleged.

To summarize—the action is to recover money paid to and received by the defendant, without any legal right to demand its payment, and to which he had no legal claim.

Such a statement of facts makes it a cause of action to recover money owned by a municipal corporation, which has, without right, been obtained without lawful compensation for the same being duly made, and is literally within the statute. And such a cause of action survives against the personal representatives of the deceased defendant.

But even if the fraud and deceit alleged in the complaint was an essential and necessary part of the cause of action, it would not change the result.

It is provided (2 R. S. 447, § 1). that for wrongs to property, rights, or interests, an action may be brought against the representative. And the second section explains the character of the wrongs intended by the statute.

That statute, it has been held, changed the law so far as property or relative rights are affected by the wrongful act (Haight v. Hayt, 19 N. Y. 464), and the meaning attached to the second section is, that the exceptions mentioned manifest the intention of the legislature, that all other actions founded upon tort should survive (Fried v. N. Y. Cent. R. R. Co., 25 How. Pr. 285; Wade v. Kalbfleisch, 58 N. Y. 282). fn. the latter case the statute is construed to mean wrongs which affect property or property rights and interests, or, in other words, such as affect the estate.

The object of the plaintiff is to recover from the de-. fendant money wrongfully obtained by him, and necessarily affects his property rights and interests, and upon his death necessarily affects his estate. Had the action been deferred until his death, I am quite clear that under the statute referred to (2 R. S. 447, § 1), it could have been maintained against his administratrix. Hence under the same authority it can now be revived.

The remaining reason urged by the appellants, that this being a statutory action, it does not survive, I can not appreciate the force of. The statute does not create the cause of action, but merely subrogates the People to the rights, either exclusively or co-equally, with the municipal corporation. In that respect, as well as in all other respects, the statutes and the principles of law applicable to other cases and causes of action apply to this case and govern it. This action is not penal nor of a penal nature; and, therefore, unlike the case of the Bank of California v. Collins ( 5 Hun, 209) to which we were referred.

I think the order below was right and should be affirmed with costs.

Sedgwick, J., concurred.  