Bianco v. Sun Oil Co.

New York Supreme Court

Bianco v. Sun Oil Co.

143 Misc. 764, 256 N.Y.S. 597, 1928 N.Y. Misc. LEXIS 1253

CourtNew York Supreme Court

DecidedMay 7, 1928

StatusPublished

Cited by7 cases

This text of 143 Misc. 764 (Bianco v. Sun Oil Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bianco v. Sun Oil Co., 143 Misc. 764, 256 N.Y.S. 597, 1928 N.Y. Misc. LEXIS 1253 (N.Y. Super. Ct. 1928).

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Opinion

Callahan, J.

At common law an action for damages for “ loss of services ” abated at the death of the plaintiff. (Cregin v. Brooklyn Crosstown R. Co., 75 N. Y. 192.) The statute that saves certain causes of action from abatement (Dec. Est. Law, § 120, as amd. by Laws of 1932, chap. 458) excludes actions for “ personal injuries.” Under section 37-a of the General Construction Law (as added by ■ Laws of 1920, chap. 917) an action for “ personal injury ” includes an action based upon a personal injury to another. (See Gorlitzer v. Wolffberg, 208 N. Y. 475; Psota v. Long Island R. R. Co., 246 id. 388.) It, therefore, appears that, under the present state of the law, an action by a father for loss of services of his infant child, even though including as part of the damage claimed actual expenditures by the father, wholly abates on the death of the father. If a change is to be made in this rule, it would require appropriate legislative action. Such a statutory policy would have precedent in the section providing for the survival of a father’s claim for seduction of his daughter. (Civ. Prac. Act, § 89.)

Motion for continuance of action by administrator denied. Order signed.

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Callahan, J.

At common law an action for damages for “ loss of services ” abated at the death of the plaintiff. (Cregin v. Brooklyn Crosstown R. Co., 75 N. Y. 192.) The statute that saves certain causes of action from abatement (Dec. Est. Law, § 120, as amd. by Laws of 1932, chap. 458) excludes actions for “ personal injuries.” Under section 37-a of the General Construction Law (as added by ■ Laws of 1920, chap. 917) an action for “ personal injury ” includes an action based upon a personal injury to another. (See Gorlitzer v. Wolffberg, 208 N. Y. 475; Psota v. Long Island R. R. Co., 246 id. 388.) It, therefore, appears that, under the present state of the law, an action by a father for loss of services of his infant child, even though including as part of the damage claimed actual expenditures by the father, wholly abates on the death of the father. If a change is to be made in this rule, it would require appropriate legislative action. Such a statutory policy would have precedent in the section providing for the survival of a father’s claim for seduction of his daughter. (Civ. Prac. Act, § 89.)

Motion for continuance of action by administrator denied. Order signed.

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Bluebook (online)

143 Misc. 764, 256 N.Y.S. 597, 1928 N.Y. Misc. LEXIS 1253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bianco-v-sun-oil-co-nysupct-1928.

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