Price v. Price

The defendant by fraudulent means induced plaintiff to marry him. He represented that he had the right to marry; that his former wife was dead. He thereby procured the plaintiff to consent to a marriage which was solemnized in due form. Three children were born of the marriage. Defendant then made false charges against the plaintiff and drove her from his house, and finally procured a decree annulling the marriage because his first wife was living while it was solemnized. The plaintiff commenced this action to recover damages for this fraud and before the case was tried the defendant died. The plaintiff seeks to continue the action against the defendant’s executors.

By 2 Revised Statutes 447 and 448, it is provided:

Section 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 wrongdoers and after his death against his executors or administrators in the saíne manner and with the like effect in all respects as actions founded upon contracts.”

Section 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.”

I think this case not one which is permitted to be continued after *301the death of either party under those two sections. The Court of Appeals in Wade v. Kalbfleisch (58 N. Y., 285), have decided that the class of wrongs described in the first section which were authorized by it to be continued after the death of the wrong-doer must be such as to effect property or property rights and interests, or, in other words, such as effect the estate. If the plaintiff should have died before defendant, I know of no authority which would permit her executors to continúe this action against the defendant. If the plaintiff is right in her application, such a result would follow her death. The second section expressly excludes the plaintiff’s ease from those saved by section one. The technical name for the action under the practice which prevailed when the statute was enacted, was ease for personal injuries, and that is excluded by section 2.

Order should be affirmed with costs.

Order affirmed with costs and disbursements.