
    Kain v. Larkin.
    
      (Supreme Court, General Term, Third Department.
    
    February 24, 1890.)
    Death by Wbonseul Act—Intentional Killing.
    In an action to recover for the death of plaintiff's intestate, who had been wrongfully shot by defendant, the rule that plaintiff could not recover if decedent, in any degree, contributed to the injury, does not apply; the action not being for negligence, but for an intentional wrong.
    Appeal from circuit court, Ulster county.
    Action by Margaret Kain, as administrator of David Kain, to recover damages for his death, caused by the wrongful act of the defendant, Patrick Larkin. There was a verdict and judgment for defendant. Plaintiff appeals. At the time of the trial, defendant was in state’s prison, under sentence on conviction of a felony in the shooting and killing of the intestate.
    Argued before Learned, P. J., and Landon, J.
    
      G. R. Adams, for appellant. Chas. H. Fowler, (F. L. Westbrook, of counsel,) for respondent.
   Learned, P. J.

The Code of Civil Procedure, § 1902, authorizes this action in case the defendant would have been liable to an action in favor of the decedent if death had not ensued. Section 1899 shows that the defendant is liable to this action, although he might also be criminally prosecuted. Whether the proof, therefore, would justify a recovery, would depend upon whether the deceased could have recovered against the defendant if death had not ensued. The learned justice who tried the cause charged that the plaintiff could not recover if the decedent in any degree contributed to the injury. In thus-charging, he applied the rule which governs actions based solely on the negligence of the defendant. In such actions, if the negligence of the plaintiff contributed to the injury, he cannot recover. But this rule does not apply to-an action for injuries caused by an assault of the defendant. An assault committed by the plaintiff on the defendant does not necessarily justify the-defendant in shooting at and wounding the plaintiff. What the defendant may do in self-defense is another matter. How far acts of the plaintiff may mitigate damages is also another matter. But it is not the law that an act of the plaintiff, however slight, which excites the defendant to commit an ássault, however violent, will prevent a recovery. How, in this case the defendant, who was acting as an officer, told Kain, the deceased, to go about his business, and shoved him off the sidewalk. Kain came back, and defendant again told him to go home. He said defendant could not make him. Then defendant shot him. On this evidence, which is substantially the evidence in the case, there vras no justification whatever for the defendant’s wanton and cruel act. There could be no doubt that if Kain had not died he could have recovered against the defendant. The statutes which have allowed a recovery by the executor or administrator in case of death have not been intended to change the grounds of liability, only to continue the right of action, which formerly abated with the death of the injured party. If this had been an action for negligence, the rule would have been properly applied by the court. But, as it was an action for an intentional wrong,—an assault and battery,—the rule did not apply. Judgment reversed. Hew trial granted-, costs to abide event. All concur.  