dissenting:
I cannot agree with the foregoing opinion.
Rights of action survive unless they are excepted by 2 R. S., m. p. 448, § 2. The question is, whether the present is “an *74action on the case for injuring to the person of the plaintiff.” If not, it survives.
The ground of action is that the plaintiff was entitled to the services of his daughter, and was deprived thereof by the wrongful act of defendant’s testator. (Knight v. Wilcox, 14 N. Y., 413.) An injury to such a right to her services is an injury to property. (Whitney v. Hitchcock, 4 Den., 461.) There is no injury whatever, to the person of the plaintiff. True; the plaintiff may recover for injury to his feelings. Such recovery is in the nature of punitive damages, such as are recovered in certain other cases. (Bartley v. Richtmyer, 4 N. Y., 38, 43, et seq.) The amount of damages which may be recovered, does not affect the nature of the action ; which is for an injury to property, and not for an injury to the person. (Dain v. Wycoff, 7 N. Y., 191 ; Ingerson v. Miller, 47 Barb., 47.)
Wade v. Kalbfleisch (58 N. Y., 282) is in harmony with this view. That was an action for breach of promise of marriage. It was not based on. injury to any right of the plaintiff which had a pecunicvry val/ue. It was based solely on injury to the plaintiff’s feelings; as an action of assault and battery would have been based on injury to the jilaintiff’s body. The only difficulty in that case was that the form of the action was on contract. And therefore, it was necessary to show that, in fast, it was not an action based on “ wrong done to' the property, rights or interests of another.” (2 R. S., 447, § 1.)
A master, deprived of the services of a servant by the wrongful act of another, is injured in his property. (Woodward v. Wasburn, 3 Den., 369.) So is the plaintiff in this case. (Fried v. New York Central R. R. Co., 25 How. Pr., 285.) The husband, deprived of the services of his wife by a wrongful act, is injured in his property; and the light of action survives. (Cregin v. Brooklyn Crosstown R. R. Co., 75 N. Y., 192; Haight v. Hayt, 19 N. Y., 464.)
In England it has even been held that the executor of a traveler on a railroad may recover for the expenses of medical attendance, and for loss to the estate on account of- the testator’s inability to work, when he had been injured by ■ defendant’s negligence. *75Bradshaw v. L. & Y. R. W. Co., L. R., 10 Com. Pl., 189.) And the distinction was drawn between such a case, and an action on breach of promise where the damages are purely personal. (Chamberlain v. Williams, 2 M. & S., 408.)
By the wrongful act of defendant’s testator, the plaintiff lost, for a time, the services of his daughter,' which were of pecuniary value to him. I think he should recover, although the wrongdoer is dead. It would be a strange doctrine that, if a robber forcibly and violently took from one’s pocket a large sum of money, the robber’s executors would not be liable to an action for the amount thus taken, for the reason that the action of assault and battery did not survive.
Judgment affirmed, with costs.