Blake v. Griswold

• Citation: 11 N.E. 137,104 N.Y. 613
• Parties: BLAKE v. GRISWOLD.
• Decision Date: 01 March 1887
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 613

11 N.E. 137

BLAKE

v.GRISWOLD.¹

Court of Appeals of New York.

March 1, 1887.

Motion for substitution.

W. C. Holbrook, for appellant.

A. Pond and R. L. Hand, for respondent.

PER CURIAM.

The motion for substitution must be granted. The plaintiff in the action, which was brought to recover the penalty imposed for failure to file a report, and for filing a false report, under the provisions of the manufacturing act, died after judgment, and during the pendency of an appeal. The argument of that appeal proceeded in this court without our knowledge of his death, and the judgment was affirmed. This motion is now made on behalf of the representatives of the plaintiff to substitute his administrator, and for judgment of affirmance in his favor. The motion is both made and resisted upon a claim that the whole law of the survival of causes of action has been subjected to a radical change which makes erroneous the drift of our recent decisions, and requires at our hands the adoption of a new rule founded upon modifications effected by the Code of Civil Procedure. The defendant claims that these changes have taken away all provisions for saving from abatement, even after judgment, an action like the present, (section 764,) and the plaintiff that all causes of action are made assignable, and therefore survive, except those specifically named, (section 1910,) and so we have been mistakenly following the common law as modified by the Revised Statutes, instead of recognizing the new rule derivable from the Code. If such had been the intention of the legislature, it is quite singular that the repealing act of 1880, passed to remove from the statutes inconsistent and superfluous provisions which had become such by the adoption of the Code, should not only have failed to repeal the two sections of the Revised Statutes, (2 Rev. St. p. 448, §§ 1, 2,) which, in connection with the common law, furnished the rule of survival, but should have expressly excepted and preserved them. 1 Laws 1880, p. 368. And not only that affects the conclusion to be reached, but the circumstance, still more remarkable, that no new or substituted rule of survival should be directly supplied by the Code, but the change, so radical and important, should be left wholly to a possible inference derived from a modification in the assignability of causes of action. While it is true that, at common law and as a general rule, the qualities of assignability and survival are tests each of the other and convertible terms, and we have so declared, (Hegerich v. Keddie, 99 N. Y. 258, 1 N. E. Rep. 787; Brackett v. Griswold, 103 N. Y. 425, 9 N. E. Rep. 438,) it does not follow that the legislature may not break that connection, and furnish a new and statutory rule of assignability, leaving the law as to the survival of causes of action unchanged. Possibly, so much has been accomplished, but certainly nothing more. While section 1910 makes an apparent extension of the rule of assignability, and section 1909 allows what can be transferred to be enforced, the last provision is expressly declared to be not applicable to a case ‘where the rights or liabilities of a party to a claim or demand which is transferred are regulated by special provision of law.’

The ‘rights and liabilities' of parties under the penal provisions of the manufacturing act are not only ‘regulated’ by special provisions of law, but are wholly created by...