#### The People of the State of New York, Plaintiff, *v.*Millie J. Newcomb, as Administratrix, Etc., Defendant.

(Supreme Court, Oswego Trial Term,

January, 1912.)

Abatement and revival—Death of party after judgment—Right of appeal therefrom — Death of one of several defendants. ■

Costs — Persons liable for or entitled to, costs — Costs on appeal.

In the absence of express statutory provision an action to recover a penalty does not survive the death of either party.

A judgment in plaintiff’s favor in such an action survives the death of the defendant, and her administratrix has a right of appeal therefrom.

Where, before the argument of an appeal to the Court of Appeals from a judgment of the Appellate Division affirming a judgment of the trial court entered upon a verdict in plaintiff’s favor in an action to recover a penalty for a violation of the Agricultural Law, the defendant dies and her administratrix is substituted as appellant, a direction, in the judgment 'of the Court of Appeals reversing the judgment 'of the trial court, for a new trial with costs to abide the event, is inoperative, as the cause of action did not survive the death of the defendant.

' The action being a penal one and the defendant having died, it cannot be determined who is the prevailing party and, as such, entitled to costs.

*259The action is not dismissed or finally disposed of in favor of or against a party within the purview of sections 3228 and 3229 of the Code of Civil Procedure, and, as there can be no trial, neither party is entitled to costs upon the entry of judgment of abatement.

Motion for award of costs, by defendant, on abatement of action.

P. T. Cahill, for plaintiff.

O. M. Reilly, for defendant.

Devendore, J.

This action was originally brought against Sarah A. Wiggins, defendant’s intestate, to recover a penalty for a violation of the Agricultural Law. At the trial a verdict was rendered in favor of the plaintiff. An appeal was taken from the judgment 'entered thereon, and affirmance in the Appellate Division followed.

The defendant then appealed to the Court of Appeals, but before argument thereof she died, ay.d the defendant Rewcomb, as administratrix, was substituted. Thereafter the judgment of the trial court was reversed and a new trial ordered, with costs to abide the event.

The action was placed upon this Oswego Trial Term calendar; and, when reached in its order thereon, it appearing that tlie original defendant was dead, it was held by the trial court that the action had abated by reason thereof and that judgment would enter accordingly. The defendant claimed that she was entitled -to an award of costs.

The action has abated. Penal actions, in the' absence of express statutory provisions, do not survive the death of either party. Carr v. Rischer, 119 N. Y. 117; Brackett v. Griswold, 103 id. 425; 1 Cyc. 67. But the defendaut administratrix had the right to review the judgment in the interest of the estate of the deceased. Wood v. Phillips, 11 Abb. Pr. N. S. 1 ; Carr v. Rischer, 119 N. Y. 117. The judgment survived the defendant’s death, but the cause of action did not. Hence, the direction, in the judgment of reversal, for a new trial, with costs to abide the event, can*260not become operative. A trial cannot be had, because the action is penal and the defendant is dead; there is no way to determine who is the prevailing party and, as <such, entitled to costs. '

The parties may be ready to try the case, yet there is no power in the court to proceed with the trial. There is no plea of abatement in the case, arid neither party has a paramount right to obtain a dismissal with costs against the other. The action is not dismissed or finally 'disposed of, in favor of or against a party, within the purview of sections 3228 and 3229 of the Code of Civil Procedure'.

Without statutory authority no costs can be awarded in an action to either party," and there is no statute pointing out the prevailing party here or granting costs to one as against the other.

I have come to the conclusion that there cannot be a trial of the case and that neither party is entitled to recover costs. 11 Cyc. 70; Travis v. Waters, 12 Johns. 500; Johnson v. Thomas, 2 Paige, 277; Begbie v. Begbie, 49 L. R. A. 141.

Judgment of abatement will enter, without costs.

Judgment accordingly.