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In the matter of Meekin.
forth and presented for the consideration and deliberation of the jury, to be disposed of as they shall deem to be just." To the same effect are McIntyre v. N. Y. C. RR. (37 N. Y., 287, 289); O'Mara v. H. R. RR. (38 N. Y., 445); and McGovern v. N. Y. C. & H. R. RR. (67 N. Y., 417, 424).
In Cregin v. Brooklyn Crosstown RR. (75 N. Y., 192, 194) the court said: "The rights and interests for tortious injuries to which this statute preserves the right of action have frequently been considered, and it is generally conceded that they must be pecuniary rights or interests, by injuries to which the estate of the deceased is diminished." That is, by diminishing his estate the value of the right of inheritance is diminished and thus the beneficiaries are injured in their estate.
In Hegerich v. Keddie (99 N. Y., 258) it was held that the cause of action for damages from negligence resulting in death abates upon the death of the wrongdoer, and that an action cannot be maintained against his representatives. This is a necessary result from the fact that the Code modifies the Revised Statutes and the common law only as to the personal representatives of the person injured, and not as to those of the person who inflicted the injury.
In Littlewood v. Mayor, &c. (S9 N. Y., 24), it was held that" when one injured by the wrongful act, neglect or default of another brings suit and recovers damages for the injury of his lifetime, in case death subsequently results from the injury, his personal representatives cannot.
maintain an action under the Act of 1847." As a matter of course the beneficiaries, in the absence at least of express authority from the Legislature, could not have in effect a double recovery, first through the settlement with the intestate and inheritance from him, and second through the action under the statute.
It appears from an examination of the record in Thomas
In the matter of Meekin.
v. Utica & Black River RR. (6 Civ. Pro. R., 353; 34 Hun, 626, 98 N. Y., 649) that the trial court submitted to the jury the following question upon the subject of damages: "What was the reasonable expectation of pecuniary benefit to the next of kin, by inheritance or otherwise, from the continuance in life of the deceased worth in money?" In that case the deceased was an unmarried man, who left him surviving only brothers and sisters. and children of deceased brothers or sisters, and it was held in all the courts that the question submitted to the jury embraced the correct measure of damages.
So in Keenan v. Brooklyn City RR. (145 N. Y., 348, 350) it was said: "The jury, in determining the amount of damages that should be awarded, was in duty bound to consider the various elements of pecuniary loss sustained by the father. First, the probable earnings of the son during his minority over and above his support, clothing and education: next, the probability of his living and becoming of sufficient ability to support his father in case of his becoming aged, poor and unable to support himself; and then they had the right to consider the amount he would have brought to his next of kin while living, and their prospect of inheriting from him after death" (Johnson v. L. I. RR., 80 Hun, 306; affirmed in this court, 144 N. Y., 719). (See also, Thomas on Negligence, 465; Sedgwick on Damages, sec. 572; 3 Sutherland on Damages, 282; Terry v. Jewett, 78 N. Y. 338; Kellogg v. RR. Co., 79 N. Y., 72; Murphy v. RR. Co., 88 N. Y., 445; Houghkirk v. RR. Co., 92 N. Y., 219; Harlinger v. RR. Co., 92 N. Y., 661; Lockwood v. RR. Co., 98 N. Y., 523; Mundt v. Glonker, 24 App. Div., 110).
Thus it appears both from the statute and the authorities, that the damages awarded for the negligent act are such as result to the property rights of the person or persons for whose benefit the cause of action was created. Nothing is allowed for a personal injury to the personal
In the matter of Meekin.
representatives or to the beneficiaries, but the allowance is simply for injuries to the estate of the latter caused by the wrongful act. The statute, as it has been held, is not simply remedial, but creates a new cause of action in favor of the personal representatives of the deceased, which is wholly distinct from and not a revivor of the cause of action, which, if he had survived, he would have had for his bodily injury. "Although the action can be maintained only in the cases in which it could have been brought by the deceased if he had survived, the damages, nevertheless, are given upon different principles and for different causes. In an action brought by a person injured, but not fatally, by the negligence of another, he recovers for his pecuniary loss, and in addition for his pain and suffering of mind and body, while under the statute it is not the recompense which would have belonged to him which is awarded to his personal representative, but the damages are to be estimated with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person" (Whitford v. Panama RR., supra). As in the language of the statute, "the damages awarded to the plaintiff" are to be estimated on the basis of a "fair and just compensation for the pecuniary injuries resulting from the decedent's death to the person or persons for whose benefit the action is brought," we think the injury is for a wrong done" to the property, rights or interests," of the beneficiary, and that hence the cause of action survives, the recovery, if any, being a part of his estate, the same as it would have been if collected and paid over before his death.
The order appealed from should, therefore, be affirmed, with costs, and the question certified to us answered in the affirmative.
PARKER, Ch.J.; O'BRIEN, BARTLETT, HAIGHT, Landon and CULLEN, JJ., concur.
Boyd v. Boyd, et al.
DAVID BOYD, INDIVIDUALLY AND AS ADMINISTRATOR OF SAMUEL BOYD, DECEASED APPELLANT, v. ROBERT BOYD ET AL., RESPONDENTS.
COURT OF APPEALS.-OCTOBER, 1900.
evidence-Testimony in supplementary proceedings admissible as impeaching evidence.
The testimony of a witness taken in supplementary proceedings is admissible for the purpose of contradicting his evidence on the subsequent trial of another action.
When a party testifies to having advanced money to another to redeem for him real estate in suit it may be shown by the other side, for the purpose of contradicting his evidence, that he had testified in supplementary proceedings that none of the prop. erty sold on execution was subsequently held in trust for him and that he did not know the person making the redemption. (Decided October 2, 1900.)
Appeal from a judgment of the Appellate Division, First Department, affirming a judgment of the Special
Edward W. S. Johnston for appellant.
Henry Daily, Jr., for respondents.
O'BRIEN, J.-This action was brought under section 1473 of the Code by the plaintiff, in his capacity as administrator and sole heir at law of a deceased person, who, it is alleged, was, at the time of his death, entitled to a sheriff's deed of certain real estate described in the complaint, and which had been sold by the sheriff on execution and redeemed by the deceased as a senior judg
Boyd v. Boyd, et al.
ment creditor. The relief prayed for is that the sheriff, who was made a party defendant, be adjudged to execute a deed to the plaintiff of the lands, and that a certain paper purporting to be an assignment of the certificate of redemption by the deceased in his lifetime, which it is alleged is a false and forged paper, be adjudged to be null and void, and that a deed to the person named as assignee in the false paper, and by him to the other defendants, be declared fraudulent and void.
The controversy arises upon the following facts: On March 5, 1872, a judgment was recovered against the defendant Robert Boyd and another, at the suit of the People, as sureties upon a forfeited bail bond. The premises described in the complaint were sold upon execution issued on this judgment January 11, 1873, the defendant Boyd then having the title. The sheriff issued a certifieate to the purchaser, which was duly recorded.
On the 9th of April, 1874, the premises sold were redeemed by Samuel Boyd, the deceased, as a judgment creditor of Robert Boyd, the owner, upon a judgment duly entered April 4, 1874, by a payment of the purchaser's bid and interest. The usual certificate of redemption was delivered to the deceased by the sheriff, and thereupon he became entitled to a deed of the lands so redeemed, but died on the 16th of April, 1883, intestate, without having received any deed.
The plaintiff alleges in his complaint that on April 2, 1883, the defendants Robert Boyd and Elise Boyd, his wife, and Joseph J. Carberry, conspiring together with intent to cheat and defraud the deceased, Samuel Boyd, who then held the certificate of redemption, and his heirs and legal representatives, of all their right, title and interest in and to said premises so redeemed, and to a conveyance thereof from the sheriff, made or caused to be made, and did produce and utter as true, a false, forged, fabricated and fraudulent paper writing, purporting to be