Mayer v. Ertheiler

Miller, J.: This is an action for fraud and deceit. It is alleged that the appellants’ testator, a tobacco broker, induced the plaintiffs to sell a quantity of tobacco by falsely representing that the vendees were financially responsible. Section 120 of the Decedent Estate Law (Consol. Laws, chap. 13 [Laws of 1909, chap. 18], added by Laws of 1909, chap. 240), which was practically a re-enactment of the Revised Statutes (2 R. S. 447, §1; Id. 448, § 2), provides as follows: “Eor wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action maybe brought by the person injured, or after his death by his executors or administrators, against such Wrong-doer, and after his death against his executors or administrators,- in the same manner and with the like effect in all respects as actions founded upon contracts. This section shall not extend to an action for personal injuries as such action is defined .in section thirty-three hundred and forty-three of the Code of Civil Procedure; except that .nothing herein contained shall affect the fight of action-now existing to recover damages foi injuries resulting in death.” That section seems too plain for construction. But a doubt seems to have been raised by a dictum of Judge Denio in Zabriskie v. Smith (13 N. Y. 322). A recovery by the plaintiff was sustained in that case, and although Judge DenIo said that the cause of action was not assignable, he did not refer to the -said provision of the Revised Statutes. In Haight v. Hayt (19 N. Y. 464) that provision was before the court, and Judge Denio, in his concurring opinion, pointed out that the test of survivorship prescribed by the statute was whether -the wrong was done “ to the property, rights or interests ” of the plaintiffs. The appellants assert that the cause of action does not survive against the personal representatives of the wrongdoer unless the latter profited by the wrong, but that contention is supported only by a dictum in Moore v. McKinstry (37 Hun, 194), in which a recovery was sustained, the case being distinguished from Zabriskie v. Smith on that point. Zabriskie v. Smith was cited in Hegerich v. Keddie (99 N. Y. 258), but that was an action for personal injuries. It has been squarely decided [160] by this court, in this and the Second Department, that the test, of . survivorship is whether the injury is to pecuniary interests and that it is immaterial ¡whether the wrongdoer profited by the wrong. (Keeler v. Dunham, 114 App. Div. 94; Seventeenth Ward Bank v. Webster, 67 id. 228.) The order should be affirmed, with ten dollars costs- and disbursements. j ■ Ingraham, P. J., McLaughlin, Scott and Dowling, JJ;, concurred. Order affirmed, wit’ i ten dollars costs and disbursements.