People v. Newcomb

75 Misc. 258, 135 N.Y.S. 151

• Court: New York Supreme Court
• Decided: January 15, 1912
• Status: Published

Opinion

Devendore, J.

This action was originally brought against Sarah A. Wiggins, defendant’s intestate, to recover a penalty for a violation of the Agricultural Law. At the trial a verdict was rendered in favor of the plaintiff. An appeal was taken from the judgment 'entered thereon, and affirmance in the Appellate Division followed.

The defendant then appealed to the Court of Appeals, but before argument thereof she died, ay.d the defendant Rewcomb, as administratrix, was substituted. Thereafter the judgment of the trial court was reversed and a new trial ordered, with costs to abide the event.

The action was placed upon this Oswego Trial Term calendar; and, when reached in its order thereon, it appearing that tlie original defendant was dead, it was held by the trial court that the action had abated by reason thereof and that judgment would enter accordingly. The defendant claimed that she was entitled -to an award of costs.

The action has abated. Penal actions, in the' absence of express statutory provisions, do not survive the death of either party. Carr v. Rischer, 119 N. Y. 117; Brackett v. Griswold, 103 id. 425; 1 Cyc. 67. But the defendaut administratrix had the right to review the judgment in the interest of the estate of the deceased. Wood v. Phillips, 11 Abb. Pr. N. S. 1 ; Carr v. Rischer, 119 N. Y. 117. The judgment survived the defendant’s death, but the cause of action did not. Hence, the direction, in the judgment of reversal, for a new trial, with costs to abide the event, cannot become operative. A trial cannot be had, because the action is penal and the defendant is dead; there is no way to determine who is the prevailing party and, as <such, entitled to costs. '

The parties may be ready to try the case, yet there is no power in the court to proceed with the trial. There is no plea of abatement in the case, arid neither party has a paramount right to obtain a dismissal with costs against the other. The action is not dismissed or finally 'disposed of, in favor of or against a party, within the purview of sections 3228 and 3229 of the Code of Civil Procedure'.

Without statutory authority no costs can be awarded in an action to either party," and there is no statute pointing out the prevailing party here or granting costs to one as against the other.

I have come to the conclusion that there cannot be a trial of the case and that neither party is entitled to recover costs. 11 Cyc. 70; Travis v. Waters, 12 Johns. 500; Johnson v. Thomas, 2 Paige, 277; Begbie v. Begbie, 49 L. R. A. 141.

Judgment of abatement will enter, without costs.

Judgment accordingly.