#### FRANK S. BOND, Respondent, *v.*SAMUEL B. SMITH and others, Appellants.

*Action for torts*— *what actions*suruime— *substitution of personal representatives, cmd separation into two actions in case of death of one defendant.*

Actions for wrongs to the property, rights or interests of another, may be maintained against the executors or administrators of a deceased wrong-doer, when they are not brought for slander, libel, assault and battery, false imprisonment, or on the case for injuries to the person of the plaintiff, or of the testator or intestate of any executor or administrator.

In an action brought against several defendants, to recover damages for fraudulent representations as to, and inducing thereby the purchase of, certain stock, if one of the defendants die, the action is properly separated and continued as two actions, one against the survivors, and the other against the personal representatives of the deceased party defendant.

Where, in such a case, the plaintiff has been partially examined as a witness on the trial before a referee, and such examination is incomplete, an order, providing that every act and proceeding done or taken in the cause previous to the decease of the party defendant shall be valid and of like force and effect in each of the separate actions as if they had been sepai'ately brought and prosecuted, is too broad, and should be made without prejudice to an application to strike out such parts of his evidence as would be incompetent as against the personal representatives of the deceased defendant.

Appeal from an order reviving, separating and continuing an action.

*John E.*Burrill, for the appellants.

*Charles M. Da Costa,*for the respondent.

Daniels, J.:

The action was brought to recover damages claimed to have been caused by fraudulent representations concerning the Clifton Iron Company, by means of which the plaintiff was induced to purchase 1,000 shares of its capital stock.

The defendant William D. Thompson departed this life during its pendency, and the order appealed from revived it by making his executors parties in his stead, and directed its continuance as a separate action as to them.

By statute, actions for wrongs to the property, rights or interest of another, may be maintained against the executors or adminis*49trators of a deceased wrong-doer, where they are not brought for slander, libel, assault and battery, false imprisonment, or on the case for injuries to the person of the plaintiff, or of the testator or intestate, of any executor or administrator.* This action was not within the exception made to the general provision contained in the first section of the statute, and for that reason it did not absolutely abate by the death of the defendant.† The order for the revivor and continuance of the action against the executors of the deceased defendant, was in all respects right and proper.

It further provided for the division or separation of the action, and for its subsequent prosecution as two actions, one against the surviving defendants, and the other against the personal representatives of the deceased defendant. And as the action was for a tort, for which the defendants were separately as well as jointly liable, this portion of the order was well warranted by authority. ‡

At the time of Thompson’s decease, the plaintiff had been partially examined, as a witness on his own behalf, before the referee to whom the action had been referred. But the examination was then incomplete. The order provided that every act and proceeding, done or taken in the case previous to his decease, should be valid, and of like force and effect in each of the separate actions as if they had been separately brought and prosecuted. The learned counsel for the appellants expressed the apprehension that this might have the effect of preventing the executors from moving to strike out such portions of the evidence given by the plaintiff, as he would not be competent to give against them in their representative capacity. The order is so broad in "this respect, that the apprehension may be warranted by its probable effect. In this respect it should be modified by the addition of a provision declaring it to be without prejudice to such a motion, and that will leave the referee at full liberty to dispose of the application, if it should be made, without the least restraint or embarrassment arising out of the effect *50of the order. In other respects the order seems to be in proper form, and well warranted by authority.*

With the modification already suggested, the order should be affirmed, with ten dollars costs, besides disbursements, to abide the event of the action.

Davis, P. J., and Brady, J., concurred.

Ordered accordingly.

*

 3 R. S. (5th ed.), 746, §§1, 2.

†

 Haight v. Hayt, 19 N. Y., 464; Byxbie v. Wood, 24 id., 607, 612; Graves v. Spier, 58 Barb., 349, 385; Heinmuller v. Gray, 13 Abb. (N. S.), 299.

‡

**Union Bank v. Mott, 27 N. Y., 633; Gardner v. Walker, 22 How. Pr., 405; McVean v. Scott, 46 Barb., 379; Heinmuller v. Gray, 13 Abb. (N. S.), 300; Arthur v. Griswold, MS. opinion of Court of Appeals.

*

 Moore v. Hamilton, 44 N. Y., 666.