Michael J. Hughes, Respondent, v. Thomas Russell, Defendant. William R. Wilder and James C. Russell, as Executors, etc., of Thomas Russell, Deceased, Appellants

Michael J. Hughes, Respondent, v. Thomas Russell, Defendant. William R. Wilder and James C. Russell, as Executors, etc., of Thomas Russell, Deceased, Appellants. Second Department, June 8, 1906. Abatement of action for personal injuries— Code of Civil Procedure, sec- " tion ‘764, construed — death of defendant after reversal of judgment for - plaintiff abates action. Sectiqp 7.6.4 of the-C.ode of Civil Procedure,-as amended in 1890, should be. construed to mean that a 'cause of action for personal in j uries survives the death .of a party only in case a verdict, report or decision is reversed, upon, questions -of-law only, after the death of the party; that such action abates when .the . .yerdipt of a jury is set asido or.tlie judgment entered- thereon is reversed, if the.p.arty,against whom the same was rendered dies before another trial is had, Sticli. amendment preserves tlie action only when tlie judgment is reversed on questions of. law only subsequent to the death of a party. If a reversal-is upon questions of fact as .well- as of, law the action'abates at the death of-a .".party before.a new trial- is. had. Appeal by William B. Wilder and another, as executors, etc., of Thomas Bussell, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered "in the office, of the clerk of the county of Bichmond on the 26th day of Decent ■ her, 1905. John Ewen, for the appellants. Millard F. Tompkins [Herbert C. Smyth with him on the brief], for the respondent. [MAJORITY — Rich, J.:] Rich, J.: This is an appeal by the executors of the deceased defendant-from an order of the Kings County Special Term continuing the action- against them as sucn executors and granting plaintiff- leave to file a supplemental complaint. The action was brought to recover damages for personal- injuries alleged to have been sustained through the defendant’s negligence. It was commenced on October 16, 1903. Issue was joined by the service of defendant’s answer on ¡November 24, 1903. The case was tried in March of 1904, and plaintiff obtained a verdict. An ' appeal was taken to this court from the judgment entered upon the verdict, which was reversed in April, 1905 (104 App. Div. 144). The defendant died May 22, 1905, and letters testamentary issued to the appellants on June 7, 1905; the order appealed- from con-, tinning the action against'them was granted December 15, 1905. Unless the cause of action comes within one of the exceptions • stated in section 764 of the Code of Civil Procedure, it abated upon the death of the defendant and the order appealed from was unauthorized. This section as first amended provided': “After verdict,, report or-decision in an action to recover damages for' a personal injury, the action does not abate by the death of a party, but- the subsequent proceedings are the same as.in a case where the cause of action survives.” (Laws of 18Y6, chap. 448, § 764, as amd. by Laws of 1881, chap. 277.) It has been held several times under this ' section that it did not have the effect of preventing the abatement of an action in which a judgment had been rendered but reversed before the death of the party. (Smith v. Lynch, 8 N. Y. St. Repr. 341 ; Carr v. Fischer, 119 N. Y. 117 ; Felsey v. Jewett, 34 Hun,'ll.) In 1890 the section was amended by adding to the provision above quoted the following: “And in case said verdict, report or decisión is reversed .upon questions.of law only said action does not abate by the death of the party against whom the same was rendered.” ■ To what' verdict, report or decision does this provision of the section apply ? I think it was only intended to apply to one Operative and in force at the death of the party. At-the time of defendant’s-death the judgme'nt'theretofore. rendered had been reversed and there was no judgment, report or decision-in existence;, so far as the cause of action was concerned, it stood exactly the same as . though the issues had never been tried and the relation-of the parties must' be" so regarded.- When the defendant died the action against him was at issue — ready for trial ;—with iio verdict, report or decision affecting the issues in any way. That .the amendment to the section was intended to apply only to- a case- where the judgment was reversed subsequent to -the death of a party is evidenced by the wording that “ said verdict, report or decision ” —- that is, the verdict that would not have survived' the reversal,, before the death does not abate by the death of 'the party against whom it is rendered, when reversed upon- questions of law only. I think the legislative intent was that the: cause of action should survive only in case, the verdict, report or decision, was reversed, upon questions of law-only, after, the death of a party, ' and that the 'cause of action abates in an action to recover for personal' injuries where the verdict of the jury is set aside or jndg- ' -men't entered thereon reversed, when the party against Whom the same.was rendered dies before another trial is had. There is a further reason why this order cannot stand ; the section expressly provides that the canse of action does.not abate- when, the reversal is upon questions of law only, while in the case at bar the reversal was upon questions of fact as well as of law. . The order must be reversed, with ten .dollars costs and .disbursements, and the motion denied, with costs. Jenks, Hooker, Gaynor and Miller, JJ., concurred. ' Order reversed', with ten dollars,costs and disbursements, and motion denied, with costs. See Laws of 1890, chap. 379, and Laws' of 1904, . Cha.p. 379.— [Ree.