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Norton v. Erie Railroad

163 A.D. 468 Court Fourth Department, Decision date 1914-07-07 Docket No. 2 English

Delivered by Kruse, P. J.:

Contents

Majority

p. 468
Gertrude I. Norton, as Sole Administratrix, etc., of Shadrach Norton, Deceased, Appellant, v. Erie Railroad Company, Respondent.
(No. 2.)
Fourth Department,
July 7, 1914.

Headnote

Negligence — action for death.—Federal Employers’ Liability Act — interest on verdict.
Under section 1904 of the Code of Civil Procedure the plaintiff in an action for death brought under the Federal Employers’ Liability Act is not entitled to tax interest on a verdict in her favor from the date of the death.
Appeal by the plaintiff, Gertrude I. Norton, as sole administratrix, etc., from an order of the Supreme Court, made at the Steuben Special Term and entered in the office of the clerk of the county of Steuben on the 19th day of December, 1913, denying plaintiff’s motion for the retaxation of costs.
p. 469
James O. Sebring, for the appellant.
F. A. Robbins, for the respondent.

The plaintiff seeks to have included in the judgment interest upon the verdict from the time of the death of the plaintiff’s intestate, as is provided by section 1904 of the Code of Civil Procedure. I think that section has no application to this case, for the reason that the action is brought under the Federal Employers’ Liability Act, and the verdict rests solely upon the claim arising under that act. The Federal statute is paramount and exclusive (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143; U. S. Comp. Stat. Supp. 1911, pp. 1322, 1324; Mondou v. N. Y., N. H. & H. R. R. Co., 223 U. S. 1 ; Taylor v. Taylor, 232 id. 363, revg. sub nom. Matter of Taylor, 204 N. Y. 135 ), and the defendant’s liability may not be extended by the provisions of our statute. No provision is made in the Federal act for adding such interest to the verdict, and I think the provisions of our statute may not be invoked for that purpose.

The order should, therefore, be affirmed, with ten dollars costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

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