Griswold v. Metropolitan Elevated Railway Co.

Parker, J. The sole question requiring consideration is ' whether the trial court erred in holding that the plaintiff -could recover in this action for the injury to the rental value of the premises, occasioned by the acts of the defendants prior to December, 1881, when she acquired title thereto. It is presented by exceptions taken to the refusal of the court, to instruct the jury that “ Plaintiff cannot recover for loss of *106 rent accruing before she owned the premises, or while they were owned by Margaret or Caroline A. Dustan,” and to the charge as made that “ By ■ virtue of Caroline A. Dustan’s will, the premises 104 West Third street, passed to the plaintiff, also all rights of actions or claims for damages. One of these rights was the right to maintain the present action.” The plaintiff did not acquire by the devise of the land to her, the right to recover for the injury to the rental value while Margaret and Caroline were the owners of the fee. A right of action therefor accrued to the owners of the premises, upon the happening of the injury, and could not,, thereafter, pass with the land. (White v. Wheeler, 25 N. Y. 252) It was a personal asset, and Margaret’s interest therein upon her death, together with the residue of her personalty, became . vested in the administratrix of her estate, for the purposes of administration, while the executor of Caroline’s will succeeded to her right to recover for the injuries done to her property during her life-time. (2R S. 447, § 1; Shepard v. Manhattan R. Co., 117 N. Y. 442.) The fact that by the residuary clause, the testatrix bequeathed all of her personalty to the plaintiff, after the payment of debts and legacies, does not aid her in this suit.. For this action must be determined according to the rights of the parties as they existed at the date of its commencement. Up to that time the executor of Caroline had not filed his-account, or been relieved from the trust reposed in him. Rot until July twenty-fourth, following, was there a final judicial settlement of his accounts as such executor, and a. decree made directing him to pay over the residuum of the •personal estate to this plaintiff. Until the happening of that event, the executor was entitled to receive the damages sustained during the life-time_ of the testatrix, and to enforce their payment, by action ill necessary, as part of the estate to be administered by him.l The plaintiff as residuary legatee had such an interest in thel estate as entitled her to insist that the executor should take all! *107 necessary proceedings to protect the estate and enforce the collection of all outstanding claims, and in the event of a failure-of duty, to demand that his accounts should be surcharged to the extent of the loss occasioned because of such misconduct. But she was without authority to maintain a suit for the recovery of damages, while a right of action therefor was vested in the executor. It follows, that so much of the recovery as embraced the damages sustained for the period of three years and seven months prior to the time when the plaintiff acquired the title was error. The judgment should be reversed and a new trial granted, with costs to abide the event, unless within thirty days the plaintiff stipulates to modify the judgment by deducting therefrom the sum of $1,951.13,.in which event the judgment, as-modified, is affirmed with costs of this court to the appellant. All concur. Judgment accordingly.