(dissenting):
The action was originally brought by Edward M. Mundt, as administrator, under section 1902 of the Code of Civil Procedure, to recover damages for the alleged negligence of the defendant *113resulting in the death of the plaintiffs intestate, Martin M. Mundt. Such negligence consisted in selling, to .the plaintiff’s intestate ten grains of morphine by mistake for ten grains of quinine. The intestate died on June 26, 1892, leaving him surviving Edward M. Mundt, his father, his sole next of kin, and also some brothers and sisters. This action was commenced in January, 1894, and the former plaintiff (the father) having died on May 22, 1895, the present plaintiff, a brother of the deceased, was substituted on November 13, 1896. Subsequent to the death of the father, the defendant moved at Special Term for a dismissal of the complaint, on the ground that the action had thereby abated, or, in the alternative, for leave to serve a supplemental answer, which latter relief was accorded, and the order entered thereon is one of those appealed from.
Upon the trial, after the introduction of evidence of the letters of administration granted to the former and present plaintiffs, and on the admission of plaintiff’s counsel as to the death of Edward M. Mundt, the defendant’s counsel again moved for a dismissal of the complaint, which was granted; and pursuant to the order entered thereon the judgment appealed from was entered. Before the entry of judgment the defendant moved to have the costs charged against the plaintiff personally, which was granted, and from the order so entered an appeal is also taken.
Upon the main question, as to whether, upon the death of the father, Edward M. Mundt, this action abated, we have to aid us the well-reasoned opinion of the learned trial judge, and the principles to be applied to the determination of such a question laid down in the leading case of Hegerich v. Keddie (99 N. Y. 258). That action was brought by the plaintiff, as administratrix, to recover damages for the death of her intestate, which the complaint alleged was caused by the negligence of the defendant’s testator. The defendant demurred, claiming that the cause of action did not survive the death of the wrongdoer. It was therein held (head note) that “ the cause of action given by the statute (Chap. 450, Laws of 1847; Code of Civ. Pro., § 1902) to the representatives of a decedent, whose death was caused by the negligence óf another, abates upon the death of the wrong-doer, and an action cannot be maintained *114against his representatives.” Although that was the express point decided, Ruger, Oh. J., in delivering the opinion of the court, gives the history of the statutory modifications in this State of the rule of the common law as to the survivability of actions, and collates the authorities upon the subject. The test as deduced by him is, that survivability is to be determined by the nature of the cause of action, and that the only tort actions which do not abate are those involving an injury to property rights. In each case it is necessary, first, to determine whether the action sounds in contract or in tort. If the latter, the next question is, is it for an injury to property rights % If not, then it abates upon the death of either party.
Considering the cause of action here, based as it is upon the defendant’s wrongful act, it clearly sounds in tort, and we think the conclusion is equally evident that it does not afiect the property rights of those in whose favor the action is given. The latter are entitled to receive the pecuniary damage suffered by the next of kin for a wrongful act. Such cause of action is purely the creature of statute, and for the manner and extent of its enforcement we must look in each case to the particular statute which creates it. The Code provision permitting this action requires it to be brought in the names of the personal representatives of the deceased ; but it is for the benefit of the husband, or Avidow, or next of kin, and not tile estate of the deceased to recover damages for the pecuniary injury suffered by them and caused by the wrongful act of another. By the Revised Statutes, it is only for wrongs done to the “ property, rights or interests ” of another that an action will survive as against the personal representatives of a deceased wrongdoer (2 R. S. 447, § 1); and as to what is meant by “ property rights or interests,” we have the definition which has received the sanction of the Court of Appeals, given by Judge Rapallo, in Cregin v. Brooklyn Crosstown R. R. Co. (75 N. Y. 194), that “ 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.”
When the. cause of action here arose, the father, as the next of kin, was entitled to the damages recoverable, though the action in form was brought by him as the representative of the deceased. *115To the father the damages exclusively belonged; and, upon his death, before judgment, there was no one in existence entitled to such damages. If the brothers and sisters are to be held to be such persons, they mot having been the. sole next of kin when the cause of action arose, their right to any damages, assuming that the action survives, would not be by reason of their being the next of kin of Martin Mnndt, but of the fact that they took as distributees of the father; in which event their right to receive the recovery would not be as the personal representatives of Martin Mnndt, but as the personal representatives of their father. It would be necessary, therefore, for us to conclude that before judgment the father had a property right in the cause of action, which upon his death passed to his personal representatives. But to consider such right of the father a property right, or as inheritable, would be doing violence, not only to definitions, but to our preconceived legal views. The only property right possible to conceive of the father possessing would be only such as arose between the death of his son and his own death; and to assume that, even in a proper action, such might be recovered, would involve a division of damages allowed by statute for a wrongful act in a way not sanctioned by any authority. This action, however, is not brought to recover such damages, but those which the new next of kin, upon the death of the father, are entitled to receive, upon the theory, not that they are distributees or representatives of the father, but that the rights conferred by statute upon the next of kin devolve upon them as such. The only basis for this contention is the fact that the action is brought in the name of the deceased person’s legal representatives, and not directly by the beneficiary. If here the father could have brought the action in his own name, as the next of kin and the person to whom the damages were to go, it would seem to follow that on his death it would abate, or, if it survived at all, that it would survive in favor of the personal representatives of the father.
We do not think, however, that further discussion is necessary, for the logical deduction to be drawn from the able discussion of the changes effected by statute in the rule of the common law is, that it is only such actions in tort as create property rights that can survive the death of either party. And the authority of that case is enforced by two later decisions. In Brackett v. Griswold (103 *116N. Y. 427) the learned judge writing the opinion says : “ We have decided that those provisions (of the Revised Statutes) affect only injuries to property-rights, and where such are not invaded the common-law rule still prevails. (Hegerich v. Keddie, 99 N. Y. 258.) In that case, while concurring in the result, I thought the statute should receive a broader interpretation and contemplated survivability as the rule and abatement as the exception. And the construction finally reached was adopted after full deliberation and argument. It must now be deemed settled, and requires us to hold that the cause of action for the penalty died with the intestate.” And in Wooden v. W. N. Y. & P. R. R. Co. (126 N. Y. 15), in discussing the question as to the proper person to bring the action, the opinion says, speaking of our own law, wherein the right of action is given to the executor or administrator: “ But it is given to the latter, not in his broad representative character, but solely as trustee, in a case like the present, for the widow and children. (Hegerich v. Keddie, 99 N. Y. 267.) It is not a right which survives to the personal representatives, but a right created anew.”
Although the precise question here presented was not involved in the case of Hegerich v. Keddie (supra), we must regard these later utterances of the Court of Appeals as enforcing and supporting the discussion of the principles therein had upon the survivability of actions given by statute. And we might well rest our conclusion upon the reasoning of the learned trial judge, enforced as it is by these decisions of the Court of Appeals to which we have called attention, and which support his view that, upon the death of the sole person beneficially interested in the recovery under the statute, an action for tort, not involving an injury to property rights, abated.
In addition to the judgment, we have exámined the orders appealed from, and do not think that we should interfere with the disposition made by the judge at Special Term. We have concluded that the judgment and orders should be in all respects affirmed, with costs.
Van Brunt, P. J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.