COURT OF APPEALS.

#### James Cregin, respondent, agt. Brooklyn Cross Town Railroad Company, appellant.

*Survivorship of actions.*

Under the provisions of 2 Revised Statutes *(page*447, *sees.*1 *and*2) a cause of action which a husband has against a railroad company for the loss of services of his wife, who was injured while in the act of getting off their cars while a passenger, through the negligence of the company, survives and may be continued by the personal representative of such husband *(Affirming, 8. O., ante,*32).

*January,*1879.

The facts are fully set forth at *ante,*page 32.

*J. Warren Lawton,*for plaintiff, respondent.

*Britton & Ely,*for defendant, appellant.

Rapallo, *J.*

We think the appellant is correct in the position that this is an action grounded in tort.

The complaint alleges that the defendant received plaintiff’s wife in one of its cars as a passenger; that she paid her fare, and while she was such passenger she was thrown down and injured by the negligence of the defendant. So contract with the plaintiff is alleged, and the *gravamen*of the complaint is the wrongful injury to the person of his wife. •

The cause of action is, therefore, one which, at common law, would have abated by the death of the plaintiff, and the *466only point to be considered is whether, under the provisions of 2 Revised Statutes *(page*447, *secs. 1 and*2), it survives.

Section 1 preserves from, abatement by death actions “ for wrongs done to the property, rights or interests of another.” This language is very broad and embraces a large class of actions. It is not confined to direct injuries to property, but includes all injuries to the rights or interests of a deceased party, except such as are enumerated and excepted in the following section, number 2. These are actions for slander, libel, assault and battery, false imprisonment and actions on the case for injuries to the *person of the plaintiff.*These exceptions necessarily prevent the surviving of any action for slander, libel, assault and battery or false imprisonment, or for any injury to the person of any deceased plaintiff, however seriously such injury may have affected his property or estate. But they do not cover an action for a wrong done to his rights or interests, even though this wrong may have been effected by. means of an injury to' the person, provided the in jury was not to the person of the plaintiff but of some other party.

The rights and interests for tortious injuries, to which this statute preserves the right of action, have frequently been considered, and it is generally conceded that they must be pecuniary rights or interests by injuries to which the estate of the deceased is diminished. The exceptions in the statute are such as scarcely to leave any conceivable action for injuries to other rights uncovered by them. But where an injury to pecuniary interests is shown the intent of the statute seems plain that the cause of action shall survive, notwithstanding that such injury be caused by a tort, provided it be not one of the torts specifically mentioned and excepted in section 2,

All pecuniary injuries (not resulting from the enumerated and excepted causes, such as assault and battery, slander, &c.) are placed upon the same footing when occasioned by a tort as if arising from breach of contract; and such is the language „of the statute. It declares that for wrongs done to the rights *467or interests of another (except the specified wrongs) the cause of action shall survive in the same manner and with the like effect in all respects as actions founded upon contracts. In *Haight*agt. *Hoyt*(19 *N. Y.,*464, 468) it is said by Groves, J., that the exceptions contained in the second section manifest the intention of the legislature that all other actions founded upon tort should survive; and in the same case, at page 474, Denio, J., says that the action (which was for false representations) was for “ a wrong done ” to *“*the rights and interests ” of the plaintiffs, and that the exception in section 2 shows, if there was otherwise any doubt, that the prior section was intended to embrace the case.

The wrong done in the present case is alleged in the complaint to have been wrongful injury to the person of the plaintiff’s wife, whereby she was rendered permanently unable to attend to her household and other duties and the plaintiff was obliged to expend sums of money in procuring medicines and necessaries, and employing physicians to treat her for her injuries and that he had been and would be permanently deprived of her services and comforts.

This we think was a wrong done to the rights and interests of the husband. He had a right to the services of his wife, they were of pecuniary value to him, and any wrong, by ■which he was deprived of those services, or put to expense to remedy or palliate the consequences of the injury to his wife, was a wrong done to his rights and interests. Adopting the construction that pecuniary rights and interests only are protected by the statute, these were plainly involved, and if the pleader had left out the word “ comforts,” the complaint would, have disclosed an injury to pecuniary interests exclusively. We do not think that, because in addition to the injury to these interests, the personal comfort of the plaintiff was interfered with, that'circumstance should deprive representatives of their remedy for the pecuniary injuries which he sustained, and which diminished his estate, nor do we think that it can be laid down as a rule of universal application to all classes *468of society, that in such a case the injury to the personal feelings and comfort of the husband is the *gravamen*of the wrong and the pecuniary injury a mere incident, of which the law will not take notice independently of the former.

Where any injury is done to the person of *the plaintiff*the pecuniary damage sustained thereby cannot be so separated as to constitute an independent cause of action, for the cause of action is single, and consists of the injury to the person; the damages are the consequence merely of that injury and when by the terms of the statute such a cause of action abates, the character of the damages cannot save it. But where the cause of action is not one of those enumerated in the statute the character of the damages may control the question whether there is an injury to the property, rights or interests of the plaintiff.

The case of *Wade*agt. *Kalbfleisch*(58 *N. Y., 282)*does not conflict with these views. The question of law involved in that case was whether the action was on contract, or for a personal injury. The majority of the court held that it was an action for a personal injury and that although pecuniary interests might be incidentally involved, the injury to them did not constitute the cause of action. This clearly appears from the prevailing opinion of Chubch, Oh. J., who says at page 287, that the action (breach of promise of marriage) was *sui generis*; that the form of action was not material. That the controlling consideration was that it did not relate to property interests but to personal injuries. Granting that it was not an action on contract but was one for personal injuries, the conclusion necessarily followed. The injuries were to the person of the plaintiff and the case was within the very letter of the exception contained in section 2 of the statute. Even though it was a tort affecting the rights and interests of the plaintiff, if it was an injury to her person it could not survive. The present action was for a tort which affected injuriously the rights and pecuniary interests of the plaintiff. It was, therefore, for a wrong done to those rights and interests, *469and is covered by section 1 of the statute. The cause of action was not an injury to his person nor any of the others enumerated in section 2, and is not within the exception. It must, therefore, be held to survive with like effect as if the action were on contract.

Note.—Would not the cause of action in this casé have survived irrespective of the statute? The action arose out of *assumpsit,*and though in form for a wrgng, it is founded on contract. It is founded on an *“*engagement ” *i. e.*(to safely carry the plaintiff’s wife), and is technically a “claim.” The failure to safely carry is the breach? [Rep.

The order should be affirmed with costs.

All concur, Milleb and Eabl, JJ., absent at argument.