Opinion
Argued June 3, 1884
Decided June 17, 1884
Christopher Fine for appellant.
Horace W. Fowler for respondents.
This court held in the case of Merchants' B'k v. Bliss ( 35 N.Y. 412) that an action brought against a trustee of a corporation to recover the liability imposed by section 12 of chapter 40 of the Laws of 1848, was governed by the statutory limitations applicable in actions to recover penalties.
Since that decision the subject of actions under that section of the statute has frequently been under the consideration of this court with the uniform conclusion that the actions therein provided for are penal in character, and are not in any respect based upon the theory of affording compensation to the injured party for damages sustained by reason of the omission complained of. ( Wiles v. Suydam, 64 N.Y. 173; Easterly v. Barber, 65 id. 252; Knox v. Baldwin, 80 id. 610; Veeder v. Baker, 83 id. 156; Pier v. George, 86 id. 613.) The logical effect of these decisions is to classify such actions among those usually designated as actions ex delicto, and which, at common law, were extinguished by the death of the tortfeasor.
The cause of action, not being such as would survive at common law, can only be maintained against executors or personal representatives, by bringing it within the provisions of the statute authorizing the survivorship of certain actions for torts.
It is quite clear that this is not one of the actions therein provided for. Those actions embrace only those brought to recover damages for "wrongs done to the property rights or interests of another." (2 R.S., § 1, p. 448.)
No allegation is contained in the complaint that the act or omission of the deceased defendant occasioned any injury to the property rights or interests of the plaintiff, and an action under the statute bears no relation to any such injury.
The second section of this act, which excepts the actions of slander, libel, assault and battery and others from the operation of the first section, does not purport to enumerate any actions except those which would otherwise be included within the language used in the first section, and does not enlarge the meaning of the language of the first section. The statute of 1848 providing for this cause of action gives it to the creditors of the corporation, and the debt itself being assignable, it follows that whoever becomes the owner thereof takes as the incident thereof the right to the penalty, and is, by the terms of the statute, entitled to maintain the action.
The statute providing for ratable contribution among the trustees, for the sums collected of either trustee, under the twelfth section of the act, is quite conclusive evidence of the understanding of the framer of the law, that this liability would not otherwise exist, and, therefore, that the cause of action is not one arising out of contract.
We are of the opinion that the order should be affirmed.
All concur.
Order affirmed.