71 N.Y.S. 551 | N.Y. App. Div. | 1901
The complaint upon its face asserts a good cause of action, an,d the defendant could not have successfully demurred, as suggested by the learned counsel for the appellant. It alleges ownership of certain real estate in his lifetime by the plaintiff’s intestate and the
On the opening of the plaintiff’s case, however, it appeared that the plaintiff’s intestate died December 30, 1887, leaving a widow and collateral heirs; that the explosion and consequent injury occurred April 4, 1900, or more than twelve years after his death, and that the plaintiff was appointed his administratrix on April 16, 1900. As the deceased had no cause of action, none survived his death, and the court necessarily dismissed the complaint in the. action brought by his legal representative.
The appellant regards the provision of the Revised Statutes (2 R S. 447, § 1) as authority for the maintenance of .the action, but that provision applies of course only to the survival of an action in favor of or against a deceased person. In Kilburn v. Coe (48 How. Pr. 144), cited by the appellant, the damages were inflicted in the lifetime of the deceased. Here upon the death of the deceased intestate the title to the real estate vested at once in his heirs, and for any injury thereafter wrongfully occasioned to the property, they alone could recover. In Mitchell v. M. E. R. Co. (134 N. Y. 11) the owner of real estate in the city of Hew York brought an action at law to recover damages for the permanent depreciation in value of his premises by the operation and maintenance of the elevated road, and having died before trial, the action was revived in favor of his executors, by whom judgment was recovered for the permanent damages. The will of the deceased was subsequently held to be invalid, and the real estate was sold under judicial proceedings. In an action by the purchaser for an injunction unless permanent damages were paid to him, the Court of Appeals held that upon the death-of the former owner the title to the property with the easements annexed, vested in his heirs; that all damages thereafter accruing belonged to them and their successors' in title, and that they could recover the same again notwithstanding such damages had been erroneously included in the former judgment.
The judgment should be affirmed.
Judgment unanimously affirmed, with costs.
