#### Titman *et al. v.*Mayor, Etc., of the City of New York.

*(Supreme Court, General Term, First Department.*

July 18, 1890.)

Limitations—“Personal Injuries”—Death bt Wrongful Act.

An action for wrongfully causing death is “for personal injuries, ” within Laws N.Y. 1886, c. 572, limiting to one year actions against the mayor, aldermen, and commonalty of any city having 50,000 inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of its negligence.

*690On exceptions from circuit court, New York county.

Action for injuries resulting in death, caused by an obstruction in a street. The complaint was dismissed at the circuit, on the ground that the cause of action was barred by the statute of limitations.

Argued before Van Brunt, P. J., and Barrett and Bartlett, JJ.

*L. Laflin Kellogg,*for plaintiffs. *Thomas P. Wickes,*for defendants'.

Bartlett, J.

The plaintiffs brought this action to recover damages under section 1902 of the Code of Civil Procedure for the wrongful act, neglect, or default of the defendants in causing the death of Thomas O’Maley, by leaving a large stone in Tenth avenue, near One Hundred and Forty-Fourth street, in the city of New York, which upset the sleigh in which Mr. O’Maley was riding on January 8, 1887, and threw him out. He died from the injuries thus received, on January 21, 1887. On February 4, 1887, letters of administration on the estate of Mr. O’Maley were issued to the plaintiffs. On January 4, 1889, the claim in suit was presented to the comptroller of the city of New York, and its settlement and adjustment were demanded, but it has not been settled or paid. This action was begun on February 6, 1889. Upon the trial at circuit the complaint was dismissed on two grounds, which are stated in the record as follows: (1) That, by the Laws of 1886, plaintiffs had one year and thirty days after the issuing of letters of administration in which to commence this action. (2) That the plaintiff did not have over two years from the death of the decedent in which to commence this action.

Upon these rulings the only questions which arise on the present appeal are E.) whether the plaintiffs’ cause of action is barred by chapter 572 of the aws of 1886, and (2) whether it is barred by section 1902 of the Code of Civil Procedure. Chapter 572, § 1, of the Laws of 1886, provides as follows: “No action against the mayor, aldermen, and commonalty of any city in this state, having 50,000 inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen, and commonalty, or of any department, board, officer, agent, or employe of said corporation, shall be maintained, unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action, and of the time and place at which the injuries were received, shall have been filed with the counsel to the corporation, or other proper law officer thereof, within six months after such cause of action shall have accrued. ” If an action for wrongfully causing death by negligence is “an action for damages for personal injuries alleged to have been sustained by reason of the negligence” of the defendants as a municipal corporation, then the one-year limitation prescribed by this statute is applicable to the case at bar, and the complaint was properly dismissed.

The learned counsel for the plaintiff insists that this is not an action for personal injuries at all, but a special statutory action growing out of a death caused by the wrong-doing of the defendant; that it is based wholly on the injury done to the estate and property of the decedent; and hence that it does not fall within the purview or terms of the act of 1886. On the other hand, the counsel to the corporation refers to the definition of “personal injury” in the Code itself as conclusive in regard to the meaning of the statute. “A ‘personal injury’ includes libel, slander, criminal conversation, seduction, and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person, either of the plaintiff or of another. ” Code Civil Proc. § 3343, subd. 9. It is to be noted, however, that the Code does not assume to apply this definition to the construction of other statutes, the section cited beginning with the words: “In construing this act, the following rules must be observed,” etc.

The question is not free from difficulty, but I cannot resist the conclusion that the phrase “personal injuries, ” as used in chapter 372 of the Laws of *6911886, was employed in a less restricted and technical sense that that which the plaintiffs’ counsel would give it. notwithstanding the distinctions which exist between the action for negligently causing death and the action for negligently causing bodily harm not resulting in death, I think nine lawyers out of ten would ordinarily speak of both as actions for personal injuries. And it seems to me that the legislature has spoken in the same way in the act of 1886. An injury to the person gives rise to both classes of actions, and that injury is the prominent idea associated with a negligence suit involving death, just as much as with a negligence suit involving less serious results. Until the passage of Lord Campbell’s act in England, and similar statutes in this country, if the injured person died in consequence of his injuries, no damages were recoverable against the party by whose wrongful act or negligence he had suffered. It is undoubtedly true that, in a technical sense, the statute gives a new cause of action. *Whitford*v. *Railroad Co.,*23 N. Y. 465; but see *Littlewood*v. *Mayor,*89 N. Y. 24. Substantially, however, and considering the nature of the redress to be afforded, it is a continuation of the original cause of action for the benefit of those dependent on the services or bounty of the deceased, and who have been injured by the personal wrong done to him. The statute, says Judge Cooley, “continues for the benefit of the wife, husband, etc., a right of action which, at the common law, would have terminated at the death, and enlarges its scope to embrace the injury resulting-from the death.” Cooley, Torts, 264. In other words, the right of action growing out of what was clearly a personal injury, in the most restricted sense, is practically, though not technically, continued and extended bythestatute. As Bapallo, J., points out in *Littlewood*v, *Mayor, supra,*the statute “ was intended to apply to the case of a party who, having a good cause of action for personal injury, was prevented, by the death which resultedfrom such injury, from pursuing his legal remedies, or who omitted in his life-time to do-so.” Such being the purpose of the change in the common law, I think the action thus authorized may reasonably and naturally be called an action for damages for personal injuries; and I have no real doubt that it was the intention of the legislature to apply the one-year limitation to suits of this character against municipal corporations, by the enactment of chapter 572 of the-Laws of 1886. This view renders it unnecessary to discuss the question whether the cause of action was barred by the two-years limitation, and requires an affirmance of the action of the court below. Exceptions overruled* and judgment ordered for defendant. All concur.