BONNELL v. GRISWOLD

BONNELL v. GRISWOLD. N. Y. Supreme Court, Fourth District ; Special Term, May, 1885. Abatement and Revival.—Manufacturing Corporations ; liability OF TRUSTEE. A cause of action against the trustee of a manufacturing corporation for the penalties imposed by section 12 of the general act, in the amount of the debts of the company, when an annual report is not filed, does not abate on the death of the plaintiff., but may be continued in the name of his executor or administrator. An administrator is an assignee of his intestate, within the rules as to the assignability and abatement of causes of action. Motion to revive and continue action in the name of the plaintiff’s administrator. The material facts appear in the opinion. [MAJORITY — Bockes, J.] Bockes, J. Motion to revive and continue the action by and in the name of the personal representative of the plaintiff, who has died since its trial, and while the case’ was in the hands of the trial judge for decision. The action was by Bonnell, sole plaintiff, against Griswold and others to recover against them for penalties imposed by section 12 of chapter 40 of the Laws of 1848, and amendments thereof. The plaintiff having died, revivor and continuance of the action are now asked for by his administrator. The answer to the motion is this: that the action, being for penalties imposed by statute, abated by the plaintiff’s decease. The death of a defendant in such an action would produce an abatement, of it as to such deceased party (Stokes v. Stickney, 96 N. Y. 323) ; and as was held in Reynolds v. Mason (54 IIow. Pr. 213; S. C., on appeal, 6 Weekly Dig. 531), a like result would follow by the death of the plaintiff. It seems that the affirmance in the last case cited was put solely upon the doctrine of the previous decision in the Bank of Cal. v. Collins (5 Hun, 209), which, "unlike the present, was a case where revivor and continuance was asked for against the executor of a deceased defendant, as in Stokes v. Stickney. In Carley v. Hodges (19 Hun, 187), the decision in the Bank of California v. Collins was not deemed applicable or controlling in a case like the present; and it was held in the former case that the-right of action survived to the executor of the deceased, creditor. The question now before me, arising upon the decease of a plaintiff, does not seem to have been authoritatively decided, unless we accept Carley v. Hodges as decisive of it. As a necessary inference, it would seem to follow from many decisions, that the action may be continued by and in the name of the personal representative of the deceased plaintiff. Actions based upon a claim that is assignable may be thus revived and continued; and an assignment of such claim against the company would carry a right of action to the assignee for the penalty imposed by section 12 of the act of 1848 (Pier v. George, 86 N. Y. 613; Bolen v. Crosby, 49 Id. 183; Hoag v. Lamont, 60 Id. 96). So in Stokes v. Stickney (96 N. Y. 323), it- is said that “the statute of 1848, providing for this cause of action, gives it to the creditors of the corporation; and the debt itself being assignable, it follows that, whoever becomes the owner thereof, takes, as the incident thereof, the right to the penalty, and is, by the terms of the statute, entitled to maintain the action” (page 327). This, too, is the doctrine of the decision in Carley v. Hodges (19 Hun, 187, above cited). Now, the administrator of the deceased plaintiff as such has become the owner of the claim against the corporation, which claim constitutes the foundation of the light of action, with the incident thereof, to wit: the fight to the penalty ; and, again quoting from Stokes v. Stickney, “is by the terms of the statute entitled to maintain the action.” Indeed, an administrator is deemed in law. to be the assignee of the assets of the estate which he represents. Judge Dettio says, in Zabriskie v. Smith (13 N. Y. 333), “an administrator represents the person of the deceased, and is in law his assignee.’ ’ In view of these decisions in the court of appeals, I think I must hold that this action may be revived and continued by and in the name of the administrator of the deceased plaintiff. Motion granted.