Hyperlawhypertext legal databasebeta Norton v. Erie R. 148 N.Y.S. 771

← Cases

Norton v. Erie R.

148 N.Y.S. 771 Court N.Y. App. Div. Decision date 1914-07-07 Docket No. 178-M4 English

Delivered by KRUSE, P. J.

Contents

Majority

p. 771
(163 App. Div. 468)
NORTON v. ERIE R. CO.
(No. 178-M4.)
(Supreme Court, Appellate Division, Fourth Department.
July 7, 1914.)

Headnote

Death (§ 92[1] )—Wrongful Death—Amount Recoverable—Federal Employers’ Liability Act—Interest.
Code Civ. Proc. § 1904, providing that, when final judgment is rendered for plaintiff in an action for wrongful death, the clerk must add interest from decedent’s death and include it in the judgment, has no application to an action for wrongful death of an interstate railroad employé under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 , as amended by Act April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. Supp. 1911, p. 1324]), and, such act containing no provision for the addition of interest to the verdict, none was allowable.
[Ed. Note.—For other cases, see Death, Cent. Dig. § 102; Dec. Dig. § 92.*]
Appeal from Special Term, Steuben County.
Action by Gertrude I. Norton, as administratrix of the gopds, etc., of Shadrach Norton, deceased, against the Erie Railroad .Company. From an order denying plaintiff’s motion for a retaxation of costs, she appeals.
Affirmed.
Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.
James O. Sebring, of Corning, for appellant.
F. A. Robbins, of Rochester, for respondent.

The plaintiff seeks to have included in the judgment interest upon the verdict from the time of the death of the plaintiff’s

p. 772
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 (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322], as amended by Act April 5, 1910, c. 143, 36 Stat. 291 [U. S. Comp. St. Supp. 1911, p. 1325]; Mondou v. N. Y., N. H. & H. R. R. Co., 223 U. S. 1 , 32 Sup. Ct. 169 , 56 L. Ed. 327 , 38 L. R. A. [N. S.] 44; Taylor y. Taylor, 232 U. S. 363 , 34 Sup. Ct. 350 , 58 L. Ed.-, reversing 204 N. Y. 135 , 97 N. E. 502 , Ann. Cas. 1913D, 276), 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 $10 costs. All concur.

Cases cited