N. Y. SUPERIOR COURT.

#### William Heinmuller, plaintiff and respondent agt. Nancy Gray, Administratrix &c. of Hiram B. Gray, deceased defendant and appellant.

*General*Term,

November, 1872,

*Before*Barbour, *C. J.,*Monell *and*Freedman *JJ.*

An action brought against defendants as *indemnitors of the sheriff,*for damages'in *trespass*in taking and carrying away plaintiff's goods under process of the court directed against a stranger, *survives*and *continues*after the death of one of the defendants ; and on the application, by motion, on the part of the plaintiff the action may be revived against the administratrix of the deceased defendant, and continued in her name.

Appeal from order. '

The action was brought against John C. Abbott and Hiram B. Gray, as indemnitors of the sheriff, for damages in trespass in taking and carrying away plaintiff’s goods under process of court directed against a stranger. After trial and verdict, judgment was entered,- on June 10th, 1871, in favor of the plaintiff for $2,481 54. On defendant’s appeal to the general term the judgment was reversed and a new trial ordered with costs to abide the event. About the 27th day of January, 1872, the defendant, Hiram B. Gray, died, and Nancy Gray was appointed administratrix of the estate of the deceased, and entered upon her duties as such.

Upon the pleadings and an affidavit, showing the foregoing facts and that no new trial had been had, and no order of revivor had been made.prior to the application then about to be made, the court at special term, on plaintiff’s motion, made an order, that the action be revived against Nancy Gray, administratrix of Hiram B. Gray, one of the defend*261ants, deceased, and that Nancy Gray, administratrix, &c., appear and answer the complaint herein, within eighty days from the service of a copy of this order upon her, or that, in default thereof, the plaintiff may apply to the court for an order entering her appearance, and directing the action to stand revived and continued against her, as administratrix, &c., and that the answer of said Hiram B. Gray be then -deemed the answer of said administratrix.

From this order the administratrix appealed.

Abram Wakeman, *for appellant.*

Stephen H. Brague, *for respondent.*

*By the Court:*Feeedman, *J.*

The appellant’s claim upon which her counsel rested his argument, that the order appealed from is illegal, for the reason" that the action connot be continued against her, is not well founded.

Section 121 of the Code provides, that no action shall abate by. the death of a party, if the cause of action survive and continue. The legal effect of this provision, in its .application to the case of the death of a defendant generally, is, that the action is not abated, but merely suspended by •such death, if an action for the Same cause may be. maintained against the personal representatives of the deceased.

The case at bar is an action known under the old practice ■as an action of trespass, and although there are no provisions in the .Code that either expressly, or by any reasonable intendment, give a right to maintain such an action, for such a cause, against the personal representatives of a wrong-doer, yet such right exists by virtue of the following provisions of the Revised Statutes, viz:

Title 5 of chapt. 6 and part 2d of the Rev. Stat., entitled, *“*Of the rights and liabilities of executors and. administrators,” provides, that any person, or his personal representatives, shall have actions of trespass against the executor or administrator of any testator or intestate who, in his life*262time, shall have *wasted,*destroyed, taken or earned 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, or committed any trespass on the real estate of any such person (2 *Rev. St.,*114 § 5; 3 *Rev. St., (5th Ed.) pa.*202, § 5).

And the statute concerning suits by and against executors and' administrators, being the first article of title 2, chapter 8 of part 3rd of the Revised Statutes, further provides, that 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 contract. (2 *Rev. Stal.,*447, § 1; 3 *Rev. Stat., 5th ed.*746, §1).

The second section of the last named act excepts only actions for slander, libel, assault and battery, false imprisonment, and 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. But even these do not abate after verdict *(Code*§ 121).

The authorities cited be appellant’s counsel to show that the action cannot be continued, are not in point. In *Hume*agt. *Brett*(35 *Barb.,*596); the court simply held that the rule of the common law, that in case of the death of one of several plaintiffs, who sue as tenants in common, the action can only be continued in the name of the survivors, has not been abrogated or altered by the modern legislation of this state.

In *Hopkins*agt. *Adams*(5 *Abb.,*352), *Potter*agt. *Van Vranken*(36 *N. Y.,*626) and' *Lahy*agt. *Brady*(1 *Daly,*443), it was held that the action for the recovery of personal property, formerly styled replevin, survives the death of the *263plaintiff, but does not survive the death of the defendant. The principle to be deduced from these decisions is, that inasmuch as the effect of a judgment in favor of the plaintiff in replevin, and in the action substituted by the Code, is to bind the defendant personally for the re-delivery of the property, no action founded upon defendant’s tortious detention can be continued, after the death of such defendant, against bis personal representatives. To be liable in that form of action, the tortious detention must be the result of the personal acts of such representatives.

In *People*agt. *Gibbs*(9 *Wend.,*32), the declaration was in assumpsit, under 3 R. S., 513, 514, by which statute sheriffs are made liable to the people of the state, in that form of action, for neglect to return a warrant issued against a tax collector. In fact, the action was in the nature of an action on the case against the deceased sheriff’s executors, for the default of the sheriff’s deputy, and consequently in substance *ex delicto.*The court, after noticing 1 R. S., 311, 312, giving trespass as the *only*statutory" provision passed in derogation of the common law, arrived at the conclusion that the case fell within the rule of the common law, which provided that, when the cause of action is *ex delicto*and not beneficial to the estate, no action lies against the representatives of the estate.

But in *Hopkins*agt. *Adams (supra),*the effect of the provisions of the Revised Statutes, first above referred .to, was fully discussed, and this court held that, although an action in the nature of replevin did not survive the death of the defendant, an action sounding in damages only, and in which the judgment, when recovered against an executor or administrator, is to be paid out of the estate in due course of administration, does survive and may be continued against defendant’s representatives.

Unless there is force in the suggestion of appellant’s counsel, that that doctrine is to be strictly confined to the case of the death of a *sole*wrongdoer, and that it cannot be extended *264to a case of the death of one of several wrongdoers, and that in the latter case, such death can only be suggested on the record, and the action can only proceed against the surviving defendant, under *2 Rev. Stat.,*386, *sec.*1, we see no reason why we should apply a different rule to the case now before us.

If the action were founded upon the joint liability of the original defendants, arising out of a contract, express or implied, the position of appellant’s counsel would be correct. In such case the action, by virtue of the statute last referred to, would survive against the surviving defendant, .and no action would lie against the appellant in her representative capacity, except upon proof of the insolvency of the surviving defendant, and that plaintiff had exhausted his remedy against him *(Voorhis*agt. *Child's Execrs.,*17 *N. Y.,*354; *Fine*agt. *Righter, 3 Abb., N. S.,*385). But this rule applies neither to parties severally liable for a debt by express contract, nor to parties jointly and severally liable as wrongdoers.

The original defendants in this case were sued as joint tortfeasors, and as such their liability is joint and several. If they had been sued separately, an answer by one pleading a former recovery against the other, would not have been good, unless it also averred actual satisfaction. It. is true that, being sued jointly, the action, upon the death of either, becomes incapable of being continued as a joint action against the survivor and the representatives of the deceased. But there can be no doubt that the action, if severed by the death of one, survives against the other, and that under section 274 of the Code, it may be continued against the representatives of the deceased as a separate action, as was suggested in *Gardner*agt. *Walker*(22 *How.,*405); *Union Bank*agt. *Mott*(27 *N. Y.,*633); and *McVean*agt. *Scott, Adm.,*(46 *Barb.,*379).

The action, therefore, was rightfully continued against the • appellant, and, no question having been raised as to the form *265of the order, as entered, the order appealed from must be affirmed. In order to be in a position to try the case against the appellant as a separate action, it may perhaps become necessary for the plaintiff to make a further application. But as that question is not properly before us, we express no opinion upon it.

Order affirmed with costs

Barbour *C. J.*and Monell *J.*concurred.