Burke v. Holtzmann, 102 N.Y.S. 162

Burke v. Holtzmann

102 N.Y.S. 162 | N.Y. App. Div. | 1907

Smith, J.:

The right of Benjamin F. Burke to recover as against the defendant has been determined by us in the appeal from the judgment of dismissal first rendered. We have examined the brief of the learned counsel for the appellant wherein he reargues the questions there decided and we see no reason for changing the decision then made.

Two questions are raised upon this appeal, however, which were not raised upon the former appeal and are 'not discussed in the opinion then written.

Since the first trial and prior to the second trial Benjamin F. Burke died. By an order of the court his administratrix was substituted in his place. The defendant claims upon this appeal that the cause of action did not survive and that this plaintiff has no cause of action. The action, however, was not one for personal injury. It was for an injury to his property interests. If this were an action for wages under a broken contract of service there would be no question that the cause of action would survive, and yet this is the nature of the action' given by the statute and because given by the statute its nature is not altered nor is the claim made the less assignable, which is the test of its survivability. We think the right of survival is determined by decisions in analogous cases. (Matter of Meekin v. Brooklyn Heights R. R. Co., 164 N. Y. 145 ; Morenus v. Crawford, 51 Hun, 89; Oregin v. Brooklyn Crosstown R. R. Co., 75 N. Y. 192.)

Again it is objected that it appears by the confession of Burke *294himself that he did not seek; other employment, which fact would prevent, his recovery, or at least authorize a nominal verdict only under the case of Ruland v. Waukesha Water Co. (52 App. Div. 230). A sufficient answer to this proposition in this cáse, however, would' seem to bé' that the plaintiffs intestate, for a part of the time at least, was excused from seeking other similar employment by the promise of defendant’s representative to give lii-m employment upon the- streets after the ice and snow had been gotten out. It may be that after he was finally.refused employment he could not recover if-he wholly neglected to seek similar employment ¿Isewhere. But this proposition was not presented, to the trial court, and- the jury was not asked to be • instructed as to the application of this rule after the. final declaration that the plaintiffs intestate would not be employed because of the failure to get the recommendation of the alderman of his ward. "

We see no other grounds for 'reversal of the judgment and conclude that the judgment and order should be affirmed, with costs. . ' '

Judgment and order unanimously affirmed, with costs. Parker, P, J., not sitting.