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Opinion of the Court, per GROVER, J.

GROVER, J. The respondent was part owner of a canal boat used generally for transporting freight for himself and the other part owner. He entered into a contract with the plaintiffs, who were common carriers between Rochester and New York, to load the boat with freight furnished by them at Rochester, and to transport the same to New York, for which they were to pay him the then price of freight, less commissions on the amount to be retained by them. The year previous he had carried one or more boat loads to New York for the plaintiffs upon the same terms. This did not make the respondent a common carrier, or subject him as such to liability for the property which was shipped upon the boat by plaintiffs. (Allen v. Sackrider, 37 N. Y., 341; Angel on Carriers, § 68.) The fact that the respondent applied to the plaintiffs for a load for the boat, instead of their making application to him to carry it, did not, under the circumstances, affect the question. The plaintiffs knew that the defendant was not in business as a common carrier, and was only to carry goods for them, and not for any other person. The fact that the plaintiffs, as common carriers, contracted with others for the carriage of the freight with which they loaded the boat, and that the respondent was aware of this, did not make the defendant liable as common carrier to them. His liability must be determined by the business in which he was engaged and the character of his own employment, and not that of the plaintiffs. The counsel for the appellants insists that the facts show that the respondent employed the plaintiffs as his agents to procure a cargo for him, and the plaintiffs being liable as common carriers to pay the damages sustained by the owners from the injury to the property, and having paid the same, are entitled to indemnity therefor from the respondent as their principal. The conclusion of the counsel is correct. The difficulty is with the premises. The respondent never employed or authorized the plaintiffs to enter into contracts with third persons on his account for the carriage of goods. The case shows that the plaintiffs' business as common carriers was extensive. That it sometimes

Statement of case.

happened that the boats owned by them were insufficient for the transaction of their entire business; that on such occasions they employed others to carry for them. They did not thereby become agents for those thus employed. They could not as such bind them by contracts entered into with third persons. If the persons employed by the plaintiffs were common carriers, and contracted as such with the plaintiffs, they would be responsible in that character to the plaintiffs, but the plaintiffs could not make contracts with third persons as agents for them. This shows that the relation of principal and agent did not exist between the respondent and the plaintiffs. The respondent being wholly free from negligence was not liable to the plaintiff for the injury to the property. The order of the General Term reversing the judgment and directing a new trial must be affirmed, and judgment absolute given for the respondent upon the stipulation.

All concur.

Order affirmed, and judgment in accordance with opinion.

CHARLES F. LIVERMORE et al., Appellants, v. RICHARD BAIN-
BRIDGE, Respondent.

Under section 121 of the Code an action does not abate, although the sole plaintiff or defendant die, and there be no verdict or judgment, provided the cause of action survive in favor of or against the representatives of the deceased party. This section, however, was not intended to change the former practice, which confined the right of continuing the action to the complainant or his representatives, unless the defendant had acquired some rights in the litigation; where a counter-claim has been interposed and issue joined thereon and referred to a referee for trial, the defendant has acquired such an interest in prosecuting the action as entitles him or his representatives to have it continued, and this relief can be obtained upon motion in the action.

(Argued February 20, 1872; decided April 2, 1872.)

APPEAL from order of the General Term of the Supreme Court in the first judicial district, affirming an order of

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Statement of case.

Special Term directing that the action be revived and continued against the executors of the defendant. (Reported below, 42 How. Pr. R., 53.)

The action was brought to recover an alleged balance of account arising on the purchase and sale of stock. Defendant's answer set up a counter-claim and asked affirmative relief; issue was joined thereon and the action was referred to a referee for trial. Pending the trial of the action, defendant died.

Edmond Randolph Robinson for the appellants. In actions at law, prior to the Code, the death of a sole plaintiff or defendant abated, and it could not be continued by or against the representatives. (Burrill's Practice, vol. 1, p. 284; 2 Revised Statutes, 386-388; Hopkins v. Adams, 5 Abb. Pr. R., 352; Keene v. Lafarge, 1 Bosw., 671.) In equity, upon death of a sole complainant, on application of defendant, the court might order the suit revived or bill dismissed. (2 Revised Statutes, p. 184; §§ 107-119 Edmond's ed., vol. 2, pp. 191, 192.) But the court had no power to continue on application of the representatives of a sole defendant deceased. (Souillard v. Dias, 9 Paige, 393.) Section 121 of the Code, the court has no such power. (Keene v. Lafarge, 1 Bosw., 671.) A statute is to be so construed as to give sense and meaning to every part. (Smith on the Construction of Statutes, § 527; Ward v. Whitney, 8 N. Y., 446; Westcott v. Thompson, 18 id., 366.) Plaintiff may always discontinue, save where a cause of action, set up on a counter-claim, would be barred by the statute of limitations. (S. & R. R. R. Co. v. Ward, 18 Barb., 595; Rees v. Van Patten, 13 How., 258; Cooke v. Beach, 25 id., 356.)

Robert Sewell for the respondent. Defendant is entitled to the order continuing the action. (Ridgway v. Buckley, 7 How., 269.) The right of plaintiff to discontinue, exists only where defendant has not interposed a counter-claim. (S. & R. R. R. Co. v. Ward, 18 Barb., 595; Rees v. Van Patten, 13 How., 258.) Plaintiff could not take a rule to

Opinion of the Court, per RAPALLO, J.

discontinue against a deceased defendant. (Jarvis (Jarvis v. Felch, 14 Abb., 46; Reed v. Butler, 11 id., 128.) Defendant's position under the counter-claim was that of plaintiff, with all its privileges. (Gleason v. Niven, 2 Duer, 643.) If the cause of action survived, the action did not abate. (Code, § 121; Potter v. Van Vranken, 36 N. Y., 619.)

RAPALLO, J. Under the Revised Statutes an action at law abated on the death of a sole plaintiff or defendant before interlocutory or other judgment or verdict, and no proceedings could be had to revive it. (2 R. S., 386, 388; Keene v. La Farge, 1 Bosw., 671.) By 2 R. S., 576, § 2, a writ of scire facias might issue to continue a suit by or against the representatives of either party who should have died in the progress thereof. But this provision was held to apply only where, under the existing law, the right to continue the action was recognized, and not to extend that right. (Webber's Executors v. Underhill, 19 Wend., 447.)

In equity a suit abated by the death of a sole complainant or defendant. The complainant or his representatives could revive, but no such right existed on the part of the defendant. If the sole defendant died, his representatives could not revive the suit unless the deceased defendant had acquired some right under a decretal order therein. (Lorillard v. Dias, 9 Paige, 393.) If a complainant died, the only remedy of the defendant, under the statute, was to compel a revivor or dismissal of the bill by application under sections 118, 119 of 2 R. S., 185. (Banta v. Marcellus, 2 Barb., 373.) This was in conformity with the practice in England. (Adamson v. Hull, 1 Sim. & Stu., 249; 1 Turner & Russ, 258.)

The death of one or more of the complainants would not abate the suit, if the cause of action survived (2 R. S., 185, § 107); and the rule was the same in actions at law. (2 R. S., 386, § 1.) The meaning of the cause of action surviving, as employed in those statutes, was not that it should survive in favor of or against the representatives of the party dying, but in favor of or against the surviving parties to the action, as in

Opinion of the Court, per RAPALLO, J.

the case of joint contractors, executors, joint tenants, etc. (Williams v. Kent, 15 Wend., 360, 362; 1 Hoffm. Ch. Prac., 368, 373.) The action might, in such cases, proceed between the survivors without any revivor.

Section 121 of the Code declares that no action shall abate by the death, marriage or other disability of a party, if the cause of action survive or continue. If this were the whole of the section, it would be in substance but a re-enactment of section 107, page 105, 2 R. S., and would only apply where the cause of action survived in favor of a co-plaintiff as against a co-defendant. But section 121 also provides for the transfer of the interest of a party, and for a continuation of the suit by or against the representative or successor in interest of the party dying or transferring, and, therefore, must be deemed to refer to the cause of action surviving or continuing in favor of or against such representative or successor in interest. The term "party" is also broad enough to cover a sole plaintiff or defendant, or all the plaintiffs or defendants. If this be its true construction, then the effect of section 121 is to change the former rule and enact that the action shall not abate though the sole plaintiff or defendant be dead, and no judgment or verdict has been rendered, provided the cause of action survive in favor of or against the representatives of the deceased party. Such seems to be thé construction adopted by this court in Potter v. Van Vranken (36 N. Y., 624).

But though the action be not abated, it is not clear that section 121 authorizes a motion by the representatives of a deceased defendant that the action be continued. The language of the section is, that the court may, on motion within one year, or afterward on supplemental complaint, allow the action to be continued. This seems to assume that the plaintiff or his representative is the moving party referred to. (Keene v. La Farge, 1 Bosw., 671.) This construction is confirmed by the succeeding provision of the same section, that at any time after the death, etc., of the party plaintiff, the court, "upon application of any person aggrieved may, in its discretion, order that the action be deemed abated, unless the

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