#### NORMAN COX, as Executor, etc., of HENRY PECK, Deceased, Respondent, *v.*THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

*Stipulation that action should not abate by death of*plaintiff— *power of counsel to make—Code, section 121—meaningcf verdict in—Exemplary damages—inwhat cases they may be given.*

Where an application was made by defendant’s counsel to put a case over a term of the court, and, as a condition of the cause going over, the defendant’s counsel stipulated that in case of the death of the plaintiff before final judgment, the cause of action should survive, and not abate by his death; *held,*that an authority in the counsel to make such stipulation could not be inferred from his employment, but must be established as a fact. (James, J., dissenting.)

As to whether the stipulation, if authorized by the defendant, would be validi *guare.*

After a verdict is set aside, it is as if no verdict had ever been rendered, and a verdict which is afterward set aside will not be sufficient, under the second paragraph of section 121 of the Code, to prevent an action from abating by the death of a party.

The essence of a wrong’s justifying exemplary damages is, that it shall be an intentional violation of another’s rights, or that a proper act shall be done with an excess of force and violence, or with malicious intent to injure another in his person or property.

*177Appeal from a judgment for the plaintiff, of $4,000 damages besides costs, entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes.

The plaintiff’s testator, having purchased tickets upon the defendant’s road, entered a drawing-room car and took a seat there. Upon being applied to for extra pay for seats in that car, he declined to pay or give up the seats for the reason that there were no vacant seats in the ordinary coaches. Thereupon the conductor forcibly removed him from the cars at Palatine Bridge, returning his passenger tickets. The testator brought this action against the defendant for the wrong and injury done him, and, upon the first trial, recovered a verdict of $8,000. The damages claimed in the complaint being only $5,000, the excess was remitted, and judgment entered for $5,000 damages. On appeal to the Supreme Court, third department, such judgment was set aside and a new trial granted, because the damages were excessive.

On a subsequent application of the defendant to put the cause over a Circuit at which it was noticed by the plaintiff for trial, the counsel for the defendant, as a condition for the cause going over the term, stipulated that in case of the death of the then plaintiff before final judgment, the cause of action should» survive, and not abate by his death. Before the case came on for trial, the then plaintiff died, and the present plaintiff was substituted.

Upon the last trial a recovery was had for $4,000, and a motion for a new trial upon the minutes was denied. From such order, and from the judgment entered upon this verdict, this appeal is taken.

*Isaac S.*Newton, for the appellant.

*Robert A. Stanton,*for the respondent.

Boardman, J. :

Three reasons are urged why this j udgment should be reversed and a new trial granted, or judgment ordered for the defendant.

First. That the action abated by the death of the testator, Henry Peck, and the cause of action does not survive.

Second. That there is no evidence of malice, as was adjudged *178upon the former appeal in this court, or other misconduct on the part of the conductor, which can justify the charge of the court allowing exemplary damages, and that the charge in that respect was erroneous.

Third. That the damages are excessive in any point of view, and vastly exceed the law of compensation to which plaintiff or his testator was entitled.

But for the stipulation, I am satisfied this cause of action would have died with the plaintiff’s testator. The final clause of section 121 of the Code takes the place, in my judgment, of section 4, 2 Revised Statutes, 387.* The verdict therein referred to, is the verdict upon which the case shall thereafter proceed. When such verdict is set aside, it is as though no verdict had ever been rendered in the case. The judges of the Court of Appeals have acted upon this belief in at least two cases.† Such a recognition by that court should guide us, notwithstanding the suggestion that it was inconsiderate.

Does the stipulation, if authorized, wipe out the law, and make, by virtue of its own intrinsic power, a new law directly hostile to the old ? I think not. It is a stipulation that the court may do what the law says it cannot do. It creates a right in the plaintiff outside of and in hostility to the law. In many cases, rights are given to parties for their benefit, which they may waive. Here, an absolute right is attempted to be created by the parties, the law denying its existence. It is an extreme view to suppose that an attorney or counsel may impose such an obligation upon his client. It is not within the ordinary conduct of a cause. Ordinarily, what relates to the remedy only, may be controlled by the attorney, if within the fair scope of his authority as an attorney, in the progress of litigation. But when he attempts *to*deprive his client of an abstract right, given by the law, and in no way related to the conduct of the litigation intrusted to him, he acts in excess of any real or implied power intrusted to him. The courts have gone far in some instances to justify counsel in the use or waiver of remedial processes, used for the protection of rights or the prevention of wrongs, but such conduct has been adjudged, in the respective cases, to be within the scope of the'apparent,' if not real, authority conferred by the client. *179Such a presumption cannot be indulged in this case. The act done was so far from the ordinary conduct of the case, so novel in its character, and so extraordinary in its consequences, that an authority should not be presumed from employment, but must be established as a fact. It follows that this action cannot be maintained as for a tort since the death of Henry Peck.

It is suggested that this action might be sustained, by virtue of the stipulation, as an action for a breach of contract. That may be true. As such an action seeks only compensation for an actual loss sustained, this judgment could not stand; it would be excessive in amount. Besides, the charge of the court in that view is erroneous in the many respects to which exceptions were taken by defendant, and especially in the rule of damages laid down.

Upon the hearing of the former appeal in this case, Mr. Justice Daniels, delivering the opinion of the court, held, in substance, that there was no evidence in the case that would justify the allowance of exemplary, or vindictive damages, and that as a consequence the former judgment of $5,000 was entirely beyond what was justified by the circumstances of this case, even if it be one which would justify punitory or exemplary damages.

The case has been retried upon the sainé evidence, in substance (and in fact, as to Henry Peek and Moody), and the jury have now rendered a verdict of $4,000. Is not this verdict condemned by the former decision as excessive ? The essence of a wrong justifying exemplary damages is, that it shall be an intentional violation of another’s rights, or that a proper act shall be done with an excess of force and violence, or with malicious intent to injure another in his person or property. “ It can make no difference whether the action be one nominally *ex contractu*or *ex delicto. *** ***In either case, if no evil motive be imputed, the amount of compensation is as much a matter of law as the right itself, and can with no greater safety be submitted to the vague and fluctuating discretion of a jury.” * In this case the plaintiff’s testator was notified that he must vacate the seat or pay for it. He refused to do either. It was optional with him to leave a train in which he could not procure a seat Without extra pay, or to pay for such seat. On his *180refusal to do either, the conductor removed him with such slight force as was necessary. There is no evidence of an intent to do more than was necessary to accomplish that purpose. There is no evidence of malice or of any preconceived intent to injure the deceased. There is little, if any, personal injury to the deceased; the loss of time ivas of no moment. What is there, then, in the case that calls for a verdict of $1,000? Little, indeed, Besides the mortification and humiliation to which the testator was exposed by being put out. There is nothing in the case to show that defendant did not run sufficient trains to accommodate the public at 'the ordinary fare. In fact, the testator was so accommodated within two hours after being put off. If it be conceded that some exemplary damages might have been justly allowed, yet they should be in proportion to the aggravation. Here we have seen that the aggravation, if existing at all, was very slight, yet the defendant is punished to nearly the extent of $1,000 beyond actual compensation for such slight or doubtful aggravation. We are disposed to concur in the views of Mr. Justice Daniels, and to hold with him that the damages in this case are so excessive as to show prejudice, passion, or an incorrect appreciation of the law applicable to the case.

For the reasons first herein given, the judgment and order appealed from must be reversed. But, since the cause of action did not survive the death of Henry Peck, the trial thereafter was a nullity, and no new trial should be ordered. Following the precedents in 13 Howard, 91, and 51 New York, 536, no costs are allowed.

James, J.:

This was an action by Henry Peck, to recover damages for his forcible removal from one of the cars running on defendant’s road. Since the first trial of the cause, the plaintiff, Peck, has died, and the plaintiff, as executor, has been substituted as plaintiff in his stead.

It appeared that the deceased bought three tickets for himself, wife and daughter, from a lateral road, entitling the holders to a passage on defendant’s road from Utica to Albany. At Utica, these persons went on hoard of a train standing on the track, and took seats in a palace car. After the train started, they were called upon for their passage tickets, which were presented, accepted and *181taken up by the train conductor. A few minutes after, the drawing-room. car conductor called upon them to pay for the seats occupied in said car. This the deceased refused. He was informed of the rules of the cars, and of the duty of the conductor to collect pay or require their removal from that car; and that, unless complied with, he should be compelled to cause their removal therefrom. The train was a special train, running in competition with a Pennsylvania road, without reference to lateral roads in this State, and was made up of all drawing-room cars, except one common car in the rear. On being again required to pay for seats, deceased was notified of the car in the rear, but, as all the seats in that car were occupied, he refused to remove or pay for the seats in the drawing-room car. On arriving at Palatine Bridge, a regular stopping place, about forty miles distant from Utica, the deceased was removed from the car with no more force than necessary to overcome the resistance offered, his wife and daughter following of their own volition, the passage tickets being handed back. Within a short time thereafter, a regular train on the defendant’s road came along; the deceased, his wife and daughter got on board, and were carried to their destination- on said tickets.

In the charge, the court told the jury, *“*if they believed that the conductor, *in the performance of his duty,*acted maliciously, recklessly, or violently, or was guilty of misconduct, they had a right to add what is termed exemplary damages,” etc. The jury found a verdict for $4,000.

This action had before been tried, and on that trial plaintiff had a verdict; a new trial was granted, and on such new trial the present verdict was obtained. Before the first trial, the cause being on the Circuit calendar for trial, the defendant sought to have the same go over the term, on account of the absence of a material witness, and on defendant’s stipulating that in case of the death of the plaintiff before final judgment, the cause of action alleged should survive, etc.; on these terms the cause was allowed to go over the Circuit. Before the present trial the plaintiff died, the present plaintiff was substituted, and the present verdict obtained.

So long as the defendant furnished a sufficient number of trains, with a sufficient number of proper cars, to accommodate the traveling public on the line and route of its road, it had the right to run *182extra or special trains, with palace or drawing-room cars, charging for seats or rooms therein, and to exclude from such cars all persons refusing to pay the extra price for seats therein. But every such train should in some way be so marked, designated or guarded, as that no passenger could get upon it without notice of its special character. In this case it was not so guarded ; the deceased and his family were permitted to enter without notice, and, under such circumstances, the defendant was bound to furnish them seats in a common car, or allow them to remain in the palace car, freed from the extra charge, to their destination.. Therefore, while the conductor was simply discharging his duty in their removal, and not liable for damages for its performance in a proper manner, the company itself was liable in damages, not for the acts of the conductor, but for not furnishing seats in a proper car according to the provisions of their contract, as implied from their purchased tickets.

It was the duty of the deceased, on being informed of the situation, either to pay the extra charge or leave the car, and look to the corporation for redress; but refusing to do so, he placed the conductor in a position where he had to disobey his orders or remove the deceased from the car. If, in the discharge of that duty, he used no more force than was necessary to overcome the resistance offered, no action could be sustained against him, and, consequently, none against his principal for that act.*

The gravamen of this action, as I have shown, was the forcible ejection of the deceased from the car by the conductor, not for refusing to carry him in another car provided for passengers with similar tickets, or for a refusal to carry him in the drawing-room car, as that was offered if he would pay tor seats.

The court assumed, on the trial that, in putting the deceased off, the conductor was in the performance of his duty. It said: *“*If the jury believed that the conductor, in the performance of his duty, acted maliciously, recklessly or violently, or was guilty of misconduct, they had the right to add exemplary damages,” etc. As an abstract proposition, this part of the charge may be unobjectionable, but it was not applicable to this case, and was improper, as implying *183that there was evidence from which the jury might find malice, recklessness, violence and misconduct, when in fact there was no such evidence. It was clear that there was no more force used than was actually necessary to overcome the resistance offered, and was not resorted to until after repeated notice, long forbearance, and after traveling a distance of over forty miles. The amount of the verdict shows that this feature of the charge was seized upon by the jury to punish the defendant for an act of its servant in performing his duty ■— for doing what he had the right to do. But if it were conceded that the conductor was guilty of an excess of force, of malice, recklessness, etc., in the discharge of his duty, and that it was a case proper for exemplary damages, the verdict was out of all proportion to the force used, or the injury inflicted, as appears by the case; and demonstrates that the jury must have been influenced by prejudice, passion, or something outside the case itself.

The next question is: Did the action abate by the death of the plaintiff? No question is made that, by common law, such would be the result of Peck’s death. But it is claimed that this rule of the common law has been changed by the Code; if not, that said result in this case has been saved by stipulation. The Code* provides that, “ after a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law.” This subdivision of said section received a very careful consideration in *Wood*v. Phillips,† although the precise question now presented was not passed upon. But it may be said in.this case, as was said in that, there is nothing in the language of section 121 inconsistent with holding that, after a verdict has once been obtained in an action of tort, the action does not abate, although the verdict be set aside, a new trial granted, and the plaintiff afterward die. Such would seem to be an equitable construction and application in cases where the verdict was set aside for excess of damages, as in this case. The Code is much broader in its provisions than the Revised Statutes, and, liberally construed, would reach this case, and place such causes of action, after verdict once obtained, as to liability to abate on the death of a party, on the same basis as a chose in action, and would *184be a construction not inconsistent with the progressive tendency of the age, seeking more exact justice. These views would seem, at first blush, inconsistent with the cases of *Comstock*v. Dodge, * and *Spooner*v. Kelly,† but in neither case was the effect of the Code upon the question even alluded to.

The stipulation in the case was, “that in case of Peck’s death before final determination and judgment, the alleged cause of action should survive,” etc. It is claimed that defendant is not bound by this stipulation, because the counsel had not authority, as such, to so bind liis client. It has been repeatedly held that the court, on application to put a cause over the Circuit, has power to impose, as a condition, that the party shall stipulate that the cause shall not abate in case of plaintiff’s death, ‡ It appears that in this case the stipulation was given as a condition of allowing the cause to go over the term, and whether imposed by the court, or given by the attorney, knowing the power of the court to impose it, makes no difference, having accepted it and availed itself of the benefit, the defendant is estopped from denying the power of its agent to make it.

Por the reasons first above stated, the judgment should be set aside and a new trial granted, costs to abide the event.

Learned, P. J., concurred in the opinion of Boardman, J.

Judgment and order reversed, without costs.

*

 Edmonds’ edition, 402.

†

 Comstock v. Dodge, 43 How., 97, and Spooner v. Keeler, 51 N. Y., 536.

*

 Sedg. on Dams., 472, 522, 528, 545, 617 ; Edwards v. Beebe, 48 Barb., 106; Wallace *v.*Mayor N. Y., 9 Abb., 40.

*

 See Townsend v. N. Y. C. and H. R. R. R. Co., 56 N. Y., 295; Cleghorn v. Same. id., 44.

*

Sec. 121.

†

 11 Abb. (N. S.), 1.

*

43 How. Pr., 97.

†

51 N. Y., 536.

‡

 Ames v. Webber, 10 Wend., 575.