This action is for a recovery of damages for a personal injury (Code of Civ. Pro. § 1343, subd. 9), and the rule of the common law that such an action abates on the death of the plaintiff is not changed by section 764 of the Code of Civil Procedure, unless a verdict, report or decision has been rendered upon the issues. Neither a verdict nor a report has been rendered in this action. The word "decision," as used in this section, refers to a decision made by a court upon a trial of issues without a jury. (Code of Civ. Pro. § 1343, subd. 5.) This action was not tried by the court without a jury, and the nonsuit is not a decision within the meaning of section 764. The order of the General Term reversing the judgment entered on the nonsuit was not made upon the hearing or trial of the issues, and is not a decision within the meaning of the section last cited.
The stipulation given by the defendant upon appealing to this court does not prevent the abatement of the action. The law-making power did not intend that the stipulation provided for in subdivision 1 of section 191 should relate to or affect the survivability of causes of action, or the abatement of actions; nor did either of the parties to this action intend that the stipulation should affect or have any relation to the abatement of the action, or to the survivability of the cause of action. The action has abated and the court is without power to revive it.
The motion to revive should be denied, with costs.
All concur.
Motion denied. *Page 582