Brackett v. Griswold

• Decision Date: 23 November 1886
• Citation: 9 N.E. 438,103 N.Y. 425
• Parties: BRACKETT, Adm'r, v. GRISWOLD.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 425

9 N.E. 438

BRACKETT, Adm'r,

v.GRISWOLD.

Court of Appeals of New York.

November 23, 1886.

This action is similar to Blake v. Griswold, ante, 434. It arises out of the same circumstances, and is brought upon a complaint containing the same counts. Before verdict or judgment the plaintiff's intestate died, and the action was revived and continued in the plaintiff's name as administrator.

W. C. Holbrook and M. D. Grover, for appellant, Griswold.

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

FINCH, J.

This appeal is taken from an order of revivor. The plaintiff's intestate was a creditor of a mining corporation, whose officers, in making their annual report, were alleged to have stated falsely the amount of capital paid in. For this cause of action, conjoined with one for conspiracy, a suit was brought, pending which, and before verdict or judgment, the plaintiff died. The question presented is whether his cause of action for the penalty of a false report died with him, or survived to his administrator. We have many times held that the provisions under which the asserted right of action accrued are highly penal in their nature, and have recently said more specifically that they are to be classed with actions ex delicto, and do not affect or concern any property, right, or interest as the subject of injury. Stokes v. Stickney, 96 N. Y. 323. At common law the action abated upon the death of either party,-the one by whom or to whom the wrong was done; and that rule must apply unless it is made inapplicable by the provisions of the Revised Statutes. 2 Rev. St. § 1, p. 447. But we have decided that those provisions affect only injuries to property rights; and, where such are not invaded, the common-law rule still prevails. Hegerich v. Keddie, 99 N. Y. 258; S. C. 1 N. E. Rep. 787. In that case, while concurring in the result, I thought the statute should receive a broader interpretation, and contemplated survivability as the rule, and abatement as the exception; and the construction finally reached was adopted after full deliberation and argument. It must now be deemed settled, and requires us to hold, that the cause of action for the penalty died with the intestate.

We have not been unmindful that, in our discussion of this question, we have assumed the assignability of a cause of action as a test, treating that and survivability as convertible terms; nor that we have also said that a cause of action for the penalty so far follows the creditor's...