Pietraroia v. New Jersey & Hudson River Railway & Ferry Co.

opinion that the judgment cannot stand because of the clear contributory negligence on the part of the deceased. She was walking toward the coming brilliantly lighted car. Her husband testifies that he heard a whistle; but, whether the whistle sounded or not, she was bound to look, and to observe that a car was approaching upon the track which she was about to cross. The presumption is that she did look, for it was something she could not help but see. Plaintiff’s counsel urges that the light was so bright that it blinded her, and that it was impossible because of its brightness for her to estimate its distance from her. These suggestions present no excuse. Had she only been injured, and not killed, and had she testified that she looked, ás the law compelled her to do, and did not see the light and the car, her testimony would have been deemed incredible as matter of law, and she must necessarily have been held guilty of contributory negligence in failing to exercise ordinary caution. Dolfini v. Erie Railroad Co., 178 N. Y. 1 , 70 N. E. 68 .

The plaintiff, a resident of the state of New York, was appointed administrator of the deceased on the ground that she, although a resident of the state of New Jersey, left property within the county of New York, consisting of a deposit in a savings bank to the credit of herself and her husband, “or either.’’ On her death the husband drew out about one half the amount, and on the trial testified that the other half belonged to his deceased wife. We are not prepared to say, upon his testimony and the form of the deposit, that none of the moneys belonged to the deceased, and that, therefore, the Sunogate’s Court had no jurisdiction to appoint the plaintiff administrator of her estate.

The accident occurred in the state of New Jersey, and the defendant is a corporation organized under the laws of that state. The decedent and her husband and children were residents there. All the witnesses to the accident on both sides had to be imported to this state. In view of the pressure of business upon the courts of New York City, although the plaintiff may have had a technical right to bring the action here, it would seem that the trial should have been had in the other state.

In any event, the verdict was against the weight of evidence as to lack of contributing negligence on the part of the deceased, and the judgment and order must be reversed, and a hew trial granted, with costs to the appellant to abide the event.

PATTERSON, P. J., concurs.

I concur with Mr. Justice HOUGHTON in the view that the deceased was guilty of contributory negligence; but I think this is a case in which the court should decline to take jurisdiction of the cause of action sued on for the reason stated in Ferguson v. Neilson, 58 Hun, 604 , 11 N. Y. Supp. 524 , Wertheim v. Clergue, 53 App. Div. 124 , 65 N. Y. Supp. 750 , and Collard v. Beach, 81 App. Div. 582 , 81 N. Y. Supp. 619 . In each of these cases the court had jurisdiction of the cause of action and of the parties, but declined to exercise it on the ground that the action was to recover for a tort committed in a foreign state, where both parties to the action were residents of

that state. In this case the defendant was a foreign corporation having no business in this state, and over which the courts of this state have no jurisdiction. The deceased was a resident of that state, and her husband and next of kin, for whose benefit the action was brought, are also residents of that state. The plaintiff, who is a resident of this state, has obtained letters of administration upon the ground that the deceased had property in this state—a proposition which is doubtful, but which I assume we cannot consider on this appeal.

In this state by sections 1902, 1903, of the Code of Civil Procedure an executor or administrator may maintain an action to recover damages for a wrongful act by which the decedent’s death was caused against a natural person who or a corporation which would have been liable to an action in favor of the decedent by reason thereof if death had not ensued; but the damages recovered in such an action are exclusively for the benefit of the decedent’s husband or wife and next of kin, and when they áre collected they must be distributed by the ■ plaintiff as if they were uribequeathed assets left in his hands after payment of all debts and expenses of administration, and the complaint alleges that there is a like statute in New Jersey.' It is however the statute of the state of New Jersey that gives the cause of action, and the action is thus brought to enforce the law of New Jersey, for the exclusive benefit of citizens of New Jersey, against a New Jersey corporation, for a tort committed in the state of New Jersey. If death had not ensued as the result of this accident, the courts of this state would have had no jurisdiction to determine whether or not the defendant was liable for the accident; and if the cause of action was given to the persons for whose benefit it could be brought the court would have had no jurisdiction. The New Jersey statute gives a cause of action to a New Jersey administrator of the decedent; but this plaintiff is not a New Jersey administrator, he having been appointed by the surrogate of this county- only. The laws of this state also give such a cause of action; but it is to recover for an injury causing death in this state, and solely for the benefit of the husband or wife and next of kin of the decedent. The plaintiff, who has no authority from the state/of New Jersey to sue, brought this action to enforce the law of New Jersey, and the right of the husband and next of kin to recover the damages which they have sustained by reason of the alleged wrongful act.

No resident of this state had the slightest interest in this controversy, and certainly the objection to the courts of this state concerning themselves with controversies between nonresidents applies with much greater force where the courts of this state would have no jurisdiction but for the fact that by reason of there being a small amount of personal property in this state an administrator is appointed to administer such personal property. If, technically speaking, the Supreme Court of the state of New York had jurisdiction of the action, the plaintiff being a resident, the courts are not bound to exercise the jurisdiction where those solely benefited are nonresidents, and where no reason exists why the liability cannot be enforced in the state where the parties reside and where the accident happened. The statutory law of this

state has no extraterritorial force and the provisions of the Code of Civil Procedure to which I have referred would not give to the plaintiff or to individuals a cause of action for a death caused by negligence in the state of New Jersey, but resort must be had to the laws of that state to determine whether or not a cause of action exists. While the courts of this state have taken jurisdiction to protect its own citizens where injury has been occasioned by the negligence of a nonresident, either individual or corporation, there is no reason for accepting jurisdiction where all those interested are nonresidents, where the accident happened in another state, and where, but for the fact that the decedent left a small proportion of property in this state, the courts of this state would have had no jurisdiction.

I am therefore in favor of reversing this judgment upon the ground that, if the courts of this state have jurisdiction because of the residence of the plaintiff, the administrator of the decedent, they will fefuse to exercise that jurisdiction, and the judgment should therefore be reversed, and the complaint dismissed.

CLARKE and SCOTT, JJ., concur.