#### Margaret Kain, Admr’x, App’lt, *v.*Patrick Larkin, Resp’t.

*(Supreme Court, General Term, Third Department,*

*Filed February 24, 1890.)*

*1,*Negligence—Bulb as to contribution does not apply to actions POP. INJURIES CAUSED BY ASSAULT.

Plaintiff's intestate was killed by defendant, acting as an officer, so far as appears, without any justification. Plaintiff, his mother, brought this action for damages under Code, § 1902. At the time of trial defendant was in state’s prison, having been convicted of a felony in killing the intestate. The court charged that plaintiff could not recover if the decedent, in any degree, contributed to the injury. *Held,*error. Such a rule does not apply to an action for injuries caused by an assault.

3. Same.

Under § 1902, the inquiry must be whether, upon the proof, the deceased could have recovered against the defendant if his death had not ensued.

3. Same—Criminal prosecution does not bar action.

Section 1899 shows that the defendant is liable to this action although he might also be criminally prosecuted.

Appeal from judgment in favor of defendant.

Action to recover for the death of plaintiff’s intestate, alleged to-have been caused by the wrongful act of defendant.

*O. F. Adams,*for app’lt; *F. L. Westbrook,*for resp’t

Learned, P. J.

The Code of Civil Procedure, § 1902, authorizes this action in case the defendant would have been liable to-an action in favor of the decedent if death had not ensued. Section 1899 shows that the defendant is liable to this action, although he might also be criminally prosecuted.

Whether the proof, therefore, would justify a recovery would depend upon whether the deceased could have recovered against, the defendant if death had not ensued.

The learned justice who tried the cause charged that the. *644plaintiff could not recover if the decedent, in any degree, contributed to the injury. In thus charging he applied the rule which governs actions based solely on the negligence of the defendant In such actions, if the negligence of the plaintiff contributed to the injury, he cannot recover.

But this rule does not apply to an action for injuries caused by an assault of the defendant. An assault committed by the plaintiff on the defendant does not necessarily justify the defendant in ¡shooting at and wounding the plaintiff. What the defendant may do in self-defense is another matter. How far acts of the plaintiff may mitigate damages- is also another matter. But it is not the law that an act of the plaintiff, however slight, which excites the defendant to commit an assault, however violent, will prevent a recovery.

Now, in this case, the defendant, who was acting as an officer, told Kain, the deceased, to go about his business, and shoved him -off the sidewak. Kain came back, and defendant again told him to go home. He said defendant could not make him. Then defendant shot him. On this evidence, which is substantially the evidence in the case, there was no justification whatever for the defendant’s wanton and cruel act. There could be no doubt that, if Kain had not died, he could have recovered against the defendant.

The statutes which have allowed a recovery by the executor or administrator, in case of death, have not been intended to- change the grounds of liability, only to continue the right of action, which formerly abated with the death of the injured party.

If this had been an action for negligence, the rule would have been properly applied by the court. But as it was an action for an intentional wrong, an assault and battery, the rule did not apply

Judgment reversed, new trial granted, costs to abide event.

Landon, J., concurs.