
    STRINGHAM v. STEWART.
    
      N. Y. Court of Appeals ;
    
    
      January, 1889.
    
      Abatement and revival.] The provision of Code Oiv. Pro. §764—that 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—ceases to apply where there has been a reversal of the judgment.
    
    Motion in court of appeals to amend remittitur.
    The action was brought by Thomas H. Stringham •against Cornelia M. Stewart to recover damages for personal injuries alleged to have resulted in consequence of the negligence of the defendant’s servants. The plaintiff recovered a judgment, which was reversed by the court of appeals, and a new trial was ordered with costs to abide the event (Reported in 100 Af. Y. 516).
    After the reversal by the court of appeals the defendant died, and this motion is made by the executors of the defendant to amend the remittitur of the court by striking •out the provision ordering a new trial with costs to abide the event, on the ground that the defendant having died, no new trial can be liad.
    
    
      
      Horace Russell (H. H. Rice, attorney),
    for the motion,, argued :—The judgment having been reversed, the action has abated. Section 1 of title III. of ch. VIII. of part III. of the Revised Statutes (Banks 7 th ed. p. 2395), which saves from abatement actions “ for wrongs done to the-property rights or interests of another,” has no application to this case, because section 2 expressly provides that “ the' preceding section shall not extend ... to' actions on, the case for injuries to the person of the plaintiff.1” That is the nature of the present action, and the character of the damages sought to be recovered, cannot be separated so as-to claim that part affects the plaintiff’s “ property rights or interests” (Hegerich v. Keddie, 99 N. Y. 258; Cregin v. Cross Town R. R. Co., 75 Id. 192 ; Cox v. N. Y. Central R. R. Co., 4 Hun, 176; Kelsey v. Jewett, 34 Id. 11), The only other statute having any application to this case is, section 764 of the Code of Civil Procedure. This section is substantially the same as the addition which was made to section 121 of the Code of Procedure in 1857. The object of both sections is to save a party or his estate any verdict which may have been rendered before the death of either party, and to enable the action to be carried on by appeal or otherwise to determine whether that verdict shall stand or fall. If the verdict is finally set aside, the action is in the same condition as though there never had been a verdict, the issues being still untried and undetermined. Plaintiff is again remitted to his original cause of action for the tort, which does not survive. In such cases, if, after the death of either party, the judgment is finally set aside,, no new trial should be ordered, for the case then stands as though the plaintiff had died before the verdict (Comstock v. Dodge, 43 How. Pr. 97; Spooner v. Keller, 51 N. Y. 527 ; Kelsey v. Jewitt, 34 Hun, 11; Cox v. N. Y. Central, etc. R. R. Co., 4 Hun, 176 ; Rumsey’s Practice, vol. 1, p. 675 ; Mosely v. Mosely, 11 Abb. Pr. 105 ; Diefendorf v. House, 9 How. Pr. 243; Smith v. Lynch, 12 Civ. Pro. R. (Browne) 348 ; Pessini v. Wilkins, 54 Super. Ct. (J. & S.) 146; Benjamin’s Ex. v. Smith, 17 Wend. 208; Spooner, Adm. v. Keeler, 51 N. Y. 527; Wood v. Phillips, 11 Abb. Pr. N. S. 1 ; Cox v. N. Y. Central & H. R. R. Co., 63 N. Y. 414; Blake v. Griswold, 104 Id. 613 ; Kelsey v. Jewett, 34 Hun, 11, 14, 15). Ho argument can be made against the defendant’s position by the amendment of section 764 in,-1881. In express language, it declared the law to be exactly what the courts had construed it to be under the wording-of section 121, in Wood v. Phillips, 11 Abb. Pr. N. S. 1, in Spooner v. Keeler, 51 N. Y. 527, and in Comstock v. Dodge, 43 How. Pr. 97. It gave no more nor fewer rights. In 1881 the Legislature simply shortened the section and thus restored the language of section 121, which the courts, had previously decided gave the same rights (People v. Fields, 58 N. Y. 491, 502 ; People v. Green, 56 Id. 466, 475 ; Butler v. Perrott, 1 Dem. 9, 13 ; Hall v. Western Transp. Co., 34 N. Y. 284). The same constrnction has always been given, to section 674, as amended, as to section 121 of the oidi Code (Power v. Village of Athens, 99 N. Y. 592). In such cases, where a new trial cannot legally be had, none will be ordered. That is the practice of this court and is within its power (Comstock v. Dodge, 43 How. Pr. 97; Spooner v. Keeler, 51 N. Y. 527 ; Rumsey’s Practice, vol. 1, p. 675 ; Code Civ. Pro. § 1317).
    
      William L. Whiting, for the plaintiff.
    
      
       As to what is a verdict, report or decision within the meaning of the statute, and the effect of death previous, see 2 Abb. New Pr. 504, note 5.
    
    
      
       The notice of motion was as follows: [after stating the formal parts] “ that the remittitur herein be corrected by striking therefrom the direction that ‘ a new trial be granted in this action and costs to .abide the event thereof,’ and for such other and further relief as may be proper.”
      The affidavit upon which the motion was made, stated . . . “That after an appeal was taken in the above entitled action to the court of appeals, and on October 25, 1886, Cornelia M. Stewart, the defendant therein died ; that the remittitur handed down by this sourt on November 28, 1888, has not yet been filed.”
    
    
      
       Code Pro. § 121, provided:
      After a verdict shall be rendered in an action for a wrong such, action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law.
      Section 764 of the Code of Civil Procedure, as first enacted, was as-follows:
      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, [unless the verdict, report or decision is finally set aside. Until it is finally set aside,] the subsequent proceedings, [including an< appeal from an order setting it aside, or from a judgment or order reversing or setting aside a judgment entered thereupon,] are the same-as in a case where the cause of action survives.
      The amendment to this section in 1881 struck out the wnrds above-indicated in brackets, and the section now reads:
      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 court of appeals granted the motion but rendered no opinion.  