This appeal is taken from an order of revivor. The plaintiff's intestate was a creditor of a mining corporation whose officers in making their annual report were alleged to have stated falsely the amount of capital paid in. For this cause of action, conjoined with one for conspiracy, a suit was brought, pending which, and before verdict or judgment, the plaintiff died. The question presented is whether his cause of action for the penalty of a false report died with him, or survived to his administrator. We have many times held that the provisions under which the asserted right of action accrued are highly penal in their nature, and have recently said, more specifically, that they are to be classed with actions ex delicto, and do not affect or concern any property right or interest as the subject of injury. (Stokes v. Stickney, 96 N.Y. 323.) At common law the action abated upon the death of either party; the one by whom or to whom the wrong was done; and that rule must apply unless it is made inapplicable by the provisions of the Revised Statutes. (2 R.S., § 1, p. 448.) But we have decided that those provisions affect only injuries to property-rights, and, where such are not invaded, the common-law rule
still prevails. (Hegerich v. Keddie, 99 N.Y. 258.) In that case, while concurring in the result, I thought the statute should receive a broader interpretation, and contemplated survivability as the rule, and abatement as the exception, and the construction finally reached was adopted after full deliberation and argument. It must now be deemed settled, and requires us to hold that the cause of action for the penalty died with the intestate. We have not been unmindful that in our discussion of this question we have assumed the assignability of a cause of action as a test, treating that and survivability as convertible terms, nor that we have also said that a cause of action for the penalty so far follows the creditor's debt, and belongs to it as an incident, that an assignment of the debt carries with it a right to the protection of the statute. (Stokes v. Stickney, supra; Bolen v. Crosby, 49 N.Y. 183.) But it was neither said nor meant that such right was itself assignable. Relatively to the debt it is rather a remedy than a right, and while it becomes, in connection with the debt, a cause of action, it belongs to the assignee of such debt by force of the statute, which gives it to him by virtue of his having become a creditor, and not because of any derivative right resting upon and born of the assignor's ended and extinguished right. In other words, the new holder has his own right of action, or none. Having become a creditor, he thereby obtains the right which the statute gives him, and must depend upon that for his relief, and not upon an impossible transfer by the assignor of the debt. The questions which may spring out of this ruling may best be reserved till they arise.
So far as the cause of action was for a conspiracy to cheat or defraud the intestate it was for an injury to a property right, and did not die with its owner. The order of revivor was to that extent proper, but should have been limited to the cause of action which survived. That has been tried, and judgment upon it given for the defendant. The plaintiff has recovered upon a cause of action which did not survive, and that recovery cannot be sustained.
The judgment should be reversed, and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.