16 N.Y.S. 923 | N.Y. Sup. Ct. | 1891
Lead Opinion
This action was brought to recover a liability imposed' by the act of 1848, (chapter 40,) for the failure of the defendant to make and-file the annual report of a mining company, of which the defendant was a trustee. A judgment was entered by default in favor of the plaintiff against-the defendant, and a motion was made to open this default, which was granted. An appeal was taken to the general term, and pending this appeal the defendant died. A motion was then made to revive the action against the executors, which motion was granted, and from the order thereupon entered this appeal is taken. It is claimed upon the part of the appellant that the motion should have been denied, because the action, being for a penalty imposed by statute, died with the person, and cannot be revived against the
Concurrence Opinion
I concur. There was a property right in the judgment, and the case is directly within the ruling in Carr v. Rischer, as is pointed out in the opinion of the presiding justice.