66

erty of their predecessors in title. The Court of Appeals in Zabriskie v. Smith seem to think that the revisers of the Revised Statutes, in re-enacting this section, proceeded on this assumption, and that this section was re-enacted in view of the common law forbidding such actions and to enable such actions to be brought."7

This particular section enables actions in favor of executors and administrators against certain tort feasors. The next section enlarges such remedy so as to embrace actions against the executors or administrators of such tort feasors.

68

In addition to section 118 of this act there is, however, now another and more general section of the statute enabling executors and administrators to maintain actions for injuries to the property of a deceased person. 2 R. S. 447, § 1, seems to have been original with the Revised Statutes, and inserted by way of amplification of enabling rights rather than for the sake of orderly repetition.69

66 Moore v. McKinstry, 37 Hun, 194, 197; Broom's Legal Maxims (ed. 1848), 706; Rockwell v. Saunders, 19 Barb. 473; Rutherford v. Aiken, 3 T. & C. 60; Hegerich v. Keddie, 99 N. Y. 258.

67 13 N. Y. at p. 334.

68 2 R. S. 447, § I, now § 120, Decedent Estate Law; see Smith v. N. Y. & New Haven R. R. Co., 28 Barb. 605, 607.

69 Now § 120, Decedent Estate I aw.

521 § 119. Actions of trespass against executors and administrators. Any person, or his personal representatives, shall have actions of trespass against the executor or administrator of any testator or intestate, who in his lifetime shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of any such person.

Formerly 2 R. S. 114, § 5.

§ 5. Any person, or his personal representatives, shall have actions of tresspass against the executor or administrator of any testator or intestate, who in his lifetime shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods or chattels of any such person, or committed any tresspass on the real estate of any such person.70

Comment. The reader will have perceived from the commentary on the prior section of this act that that section enables actions to be brought by executors or administrators against persons who have injured the property of persons deceased during the lifetime of the latter, and that it was virtually a re-enactment of 4 Edw. III, chap. 7, "de bonis asportatis." By the old law if such defendants had died, either before or after action brought, the cause of action abated or was at an end." "1

This section enables the cause of action to lie against the executors or administrators of such tort feasors. In other words it enlarges the remedy.72 Such an enlargement seems to have taken place in this State long prior to a similar enabling act in England.73 In that country the act, 30 Car. II, chap. 7, explained by 4 and 5 W. & M., chap. 24, only enabled such actions to lie against executors or administrators of an executor or administrator who had committed a devastavit, although they are frequently thought to be of the same

74

70 Repealed by § 130, Decedent Estate Law.

71 Supra, pp. 508, 514; Potter v. Van Vranken, 36 N. Y. 619, 627. 72 Potter v. Van Vranken, 36 N. Y. 619, 627.

73 Chap. 19, Laws of 1787; 2 J. & V. 42, § 2.

74 Williams

on Executors, 1231; Matter of Lamb, 10 Misc. 638, 641.

75

76

purport as this section. Such is not the fact. It was not until the act 3 & 4 William IV, chap. 42, that causes of actions specified in this section were enabled to be brought in England. An opinion in the case of People v. Gibbs seems to concede the larger effect of the New York act, and its earlier change of the common-law rules. If this construction of that opinion is correct, it supports the statements just advanced in the text under this section.78

The history in this State of this particular section seems to be this: When Jones and Varick came in 1787 to revise the English Statutes extending to New York, including 4 Edw. III, chap. 7, "de bonis asportatis," they extended the operation of the statute so as to include the executors or administrators of the certain tort feasors therein mentioned, This provision was re-enacted in the subsequent revisions of the statutes in 180180 and 1813,81 and thus finally crept into the Revised Statutes 82 and this act.83 The contrast thus effected in the law of this State as compared with the law of England seems first to be noticed in People v. Gibbs.84

79

85

Trespass on Real Property. The history of the final part of this section relative to trespass on real property has been briefly noticed under the prior section of this act. It originated with the Revised Statutes which was followed in England by a similar statute to the same effect.86 It is well known that the Revised Statutes was received in England with great attention, and a version of it was soon republished there with a commentary. The Revised Statutes are frequently mentioned by Spence in his notable work on Equitable Jurisdiction in England. Actions now lie under this section against executors and administrators of persons committing a trespass on

75 See note, 2 Kent Comm. 416, where the affect of 30 Car. II, chap. 7 is stated too generally.

76 See Williams on Executors (2d ed.), 1234.

779 Wend. 29, 33, 34; I R. I. 311, 312, there referred to was only a re-enactment of 2 J. & V. § 2.

78 Hegerich v. Keddie, 99 N. Y. 258, 261, 263; Potter v. Van Vranken, 36 id. 619, 627.

real property.87 Where the plaintiff in trespass dies before entry of judgment, his executors or administrators are limited to the damages incurred at the time when action was brought.88

87 Gould v. Patterson, 87 Hun, 533, 537; Heinmiller v. Gray, 44 How. Pr. 260, 13 Abb. Pr. N. S. 299, 35 Sup. Ct. (J. & S.) 196; Rutherford v. Aiken, T. & C. 60, 62.

88 Mitchell v. Village of White Plains, 91 Hun, 189.

§ 120. Actions for wrongs, by or against executors and administrators. For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or after his death, by his executors or administrators against, such wrong-doer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts. This section shall not extend to an action for personal injuries, as such action is defined in section thirtythree hundred and forty-three of the code of civil procedure; except that nothing herein contained shall affect the right of action now existing to recover damages for injuries resulting in death.

Added by chapter 240, Laws of 1909.

Formerly 2 R. S. 447, § 1 and 2 R. S. 448, § 2.

1. For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrong-doer, such action may be brought by the person injured, or after his death, by his executors or administrators, against such wrong-doer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts.89

§ 2. But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator.89

Comment. Section 120 of the present Decedent Estate Law is the result of an amendment to the original "Decedent Estate Law of 1909." 91 It was then found that part of the Revised Statutes which ought to have been inserted in the original draft of the Decedent Estate Law had been omitted, and such omission was accordingly corrected by an amendment to the law as first passed. The above sections, thus taken out of the Revised Statutes, had been

89 Repealed by chap. 240, § 93, Laws of 1909, amending § 130, Decedent Estate Law.

90 Chap. 240, § 16, Laws of 1909, in effect April 22, 1909.

91 Chap. 18, Laws of 1909.