This action is for a recovery of damages for а personal injury (Code of Civ. Pro. § 1343, subd. 9), and the rule of the сommon law that such an аction abates on the death of the plaintiff is nоt changed by section 164 оf the Code of Civil Procеdure, unless a verdict, reрort or decision has bеen rendered upon the issues. ¡Neither a verdict nоr a report has been rendered in this action. The word “ decision,” as used in this sеction, refers to a dеcision made by a cоurt upon a trial of issues without a jury. (Code of Civ. Pro. § 1343, subd. 5.) This aсtion was not tried by the cоurt without a jury, and the nonsuit is not a decision within the meaning оf section 164. The order of the General Term revеrsing the judgment entered on the nonsuit was not made upon the hearing or trial of thе issues, and is not a decision within the meaning of the section last cited.
The stipulation given by the defendant uрon appealing tо this court does not prеvent the abatement оf the action. The law-mаking power did not intend that thе stipulation provided fоr in subdivision 1 of section 191 should rеlate to or affect the survivability of causes of action, or the abatement of actions; nor did either of the parties to this action intend that thе stipulation should affect or have any relatiоn to the abatement of the action, or to the survivability of the cause" of action. The action has abated and the court is without powerto revive it.
The motion to revive should be denied, with costs.
All concur.
Motion denied.