Hegerich v. Keddie

Beady, J.: This action was brought by the administratrix above named, to recover from the executor of David Cant damages for personal injuries received by the plaintiff’s intestate which resulted in his death, and which injuries were alleged to have been caused by the negligence of the defendant’s testator. The defendant relies upon the statutes of 1847 and amendments (see 4 B. S. [Edm. ed.], 526, 527), and sections 1902, 1904 of the Code of Civil Procedure. 'The defendant demurred and the demurrer was sustained. The question presented in this case is whether the action may be maintained against the personal representatives of the wrong-doer. The proposition on the part of the defendant is, that the action dies with the person causing the injuries. That this rule of law -exists as to all other actions sounding in tort there can be no doubt. (See 3 B. S. [7th ed.], pp. 2394, 2395.) With regard, however, to the statutes under which this action was brought a different rule prevails. The Court of Appeals, in the case of Whitford v. Panama Railroad Co. (23 N. Y., 465, 480), declared in reference to “them that the action therein provided appeals to no common law right and rests upon no common law principle, and that it is created by and derives all its vitality from the statute. This has been substantially reasserted in the case of McDonald v. Mallory (77 N. Y., 546, 550). These authorities seem to establish the proposition that the right of action under the statutes mentioned is to be considered without reference to the rules of the common law, in relation to actions of tort for injuries to the person. But it is not necessary,to pursue this inquiry further, for the reason that in the case of Yertore v. Wiswall (16 How. Pr., 8), it was decided by the General Term that such an action survived and could be maintained against the representative of the wrong-doer, because it was for the enforcement of a statutory right of property. The point seems to have .been [143] fully considered in that case and to have been determined in favor of the right of action, as already stated. This case has not been overruled by the Court of Appeals in any reported adjudication, and is regarded as controlling of the question, and to be followed until it is reversed by the court of last resort. For these reasons, and without a more extended examination of the question, it is considered that the judgment in the court below should be reversed with costs to abide the event, and with liberty to the defendant to answer in twenty days, on payment of the costs of the demurrer. Davis, P. J’., concurred.