60 N.Y.S. 761 | N.Y. App. Div. | 1899
The action was Drought to recover ior personal injuries csused by the negligence of the defendant. Issue was joined, and the action came on for trial and resulted in the dismissal of the- complaint, and judgment was then entered April 22, 1899. From this judgment the plaintiff appealed, and pending that appeal died, and letters of administration were issued upon his estate by the surrogate of New York county. The plaintiff then moved that the ■action be continued in the name of the administratrix, and that she be allowed to prosecute said appeal, which motion was granted, and from the order entered thereon the defendant appeals.
The action abated upon the death of the plaintiff, and unless some right is given to the administratrix to continue the action, the motion should not have been granted. (Hegerich v. Keddie, 99 N. Y. 259; Brackett v. Griswold, 103 id. 425.) It does not appear that any- provision of the Code of Civil Procedure applies. Section 755 provides that an action does not abate by any event, if the cause of action survives or continues. ‘ Here, however, the cause of action did not survive, but abated by the death of the plaintiff prior to his recovering a judgment. . By section 764 of the Code it is provided that after “ verdict, report or decision ” in an action to recover damages for a personal injury, the action does not abate by tlie death of the party,
There being in this case no verdict to sustain, the only object of
Van Brunt, P. J., Barrett, Rumsey and McLaughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars, costs.