58 N.Y. 282 | NY | 1874
The question involved in the order appealed from is, whether an action for a breach of promise of marriage can be revived against the executors or administrators of the promissor. Originally, at common law, all actions abated by the death of a sole plaintiff or defendant, and if the cause of action survived, a new writ was necessary. This rule has been somewhat modified in England by *284
statute and judicial decisions. (
In actions on contract the motives for violation are immaterial. In this action, the motives and conduct of the defendant and other extrinsic circumstances may be given in evidence, in mitigation or aggravation, and punitive damages may be recovered (8 Barb., 326), while in actions on contract they are not allowed. (Sedg. on Dam., 226.) So the habits, *286 character and conduct of the plaintiff may be shown in defence or mitigation of damages. (5 Abb. [N.S.], 29.) In short, looking at the substance of the action, no court would be justified in holding that it is an action upon contract, within the meaning of the statute referred to.
The learned counsel suggested, that upon a trial against executors or administrators the personal elements of the action might be eliminated, and a recovery confined to the pecuniary loss for support, dower, etc. There is no precedent for such a proceeding, and no principle upon which it could be adopted. For some purposes, where the relation exists, the pecuniary rights of the wife are estimated and protected by the courts. But, what would be the rule of pecuniary loss hypothetically sustained for support? Would it be competent to prove the value of the defendant's property? Such evidence is admitted in this action, not to prove the pecuniary loss for support, but to show what the station of the plaintiff in society would have been, which is purely a personal grievance and injury. (25 E.C.L., 590.) The counsel likened it to an employment for a term of years at a fixed salary, and contract broken by the employer without cause. If it could be thus transformed, it would be competent to show, in defence, that the plaintiff had an opportunity to contract an equally eligible marriage with another person, and the plea of the want of affinity or affection would not avail. As to dower, there could be no certainty to base a recovery upon. It would have been competent for the defendant to have disposed of all real estate before marriage, and all personal estate before death. Aside from these considerations, suggested to show the novelty, if not the absurdity of such a trial, the brief answer to this point is, that the action is from its peculiar nature indivisible. If revived at all it must be revived as an entirety. If its personal features are abandoned the incidents only remain. The circumstances relative to the property and standing of the defendant are admissible upon the question of damages, but they are incidental *287 and subordinate, and so complicated with personal injuries as to render their separation impracticable.
It is also urged, that if this is not an action upon contract it may be revived under the provisions of 2 Revised Statutes, 447, which provide, that "for wrongs done to property rights or interests" an action may be maintained by or against executors, etc., except actions for slander, libel, assault and battery, false imprisonment, and actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate. The views before expressed dispose of this point. The wrongs for which this statute authorizes an action to be brought by or against executors are such as affect property or property rights and interests, or in other words, such as affect the estate. The statute is mutual, and actions may be brought not only against, but by executors, etc. Executors represent property only. They can take only such rights of action as affect property, and cannot recover for injuries for personal wrongs. If this statute had intended to reach this class of wrongs we must presume that it would have been so expressed. The general language does not embrace them. Although, in form, this action resembles an action on contract, in substance it falls within the definition of the exception, as an action on the case for personal injuries.
It is unnecessary to classify it. It is properly termed suigeneris. The form of the action is not material. The controlling consideration is, that it does not relate to property interests, but to personal injuries. In Zabriskie v. Smith (
It is said, in 25 Howard's Practice Reports, 286, thatZabriskie v. Smith was wrongly decided, in consequence of overlooking the statute last referred to. Whether this is so or not, as to the action there involved, the opinion respecting the nature of this action remains unimpaired. The precise point presented in this case has never been determined in this State, although the facts involved must have existed. This *288 furnishes some evidence that the common-law maxim actiopersonalis moritur cum persona is regarded by the profession as applicable to this action, notwithstanding the statutes. No case has been cited from any source where any court has permitted a revivor of such an action. On the contrary, every court where the question has been presented, so far as I have examined, has decided adversely. (2 Maule Sel., 408; 1 Pick. [18 Mass.], 71; 4 Cush. [58 Mass.], 408; 13 Serg. Rawle, 183.) These decisions were based upon the nature of the action, and are legitimate authorities upon the question in this State. Our statutes do not weaken their force. Upon precedent, therefore, as well as principle, the order should be affirmed.
All concur, except RAPALLO, J., dissenting.
Order affirmed.