Isola v. Weber — 69 N.Y. St. Rep. 691

Majority

p. 691

Maria Isola et al., as Administrators, etc., Resp’ts, v. John Weber et al., App’lts.^[1]

(Court of Appeals,

Filed October 29, 1895.)

Headnote

Constitution—Injuries resulting in death.

The provision of section 18, article 1 of the State Constitution of 1894, does not affect causes of action which had accrued before it went into effect.

Appeal from an order of the general term of the court of common pleas for the city and county of New York, which reversed an order of special term denying plaintiffs’ motion for leave to amend their complaint by increasing the amount of damages prayed for, in an action brought to recover damages for the death of plaintiffs’ intestate, alleged to have been caused by the negligence of defendants.

John J. Fitzgerald, for app’lts; George H. Hart, for resp’ts.

The motion to amend the complaint by changing the claim for damages, occasioned by the negligence of the defendants, and resulting in the death of plaintiffs’ intestate, from five thousand dollars to twenty-five thousand dollars, involves the question whether section 18 of article 1 of the new Constitution operates restrospectively, and affects causes of action accrued before it went into effect. The language of that provision is: “ The right of action now existing to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation.” At special term Judge Pryor denied the motion to amend, upon the ground that the constitutional provision was prospective only and did not operate upon causes of action antedating its own existence. The general term reversed and granted the amendment, and the defendants appeal from that order.

The same question at nearly the same time came before the general term of the first department, which held that the provision did not operate restrospectively. We think that conclusion was correct, O'Reilly v. Utah, N. & C. Stage Co., 87 Hun, 406 ; 68 St. Rep. 432 , and adopt the reasoning of the opinion by Follett, J., in that case as a sufficient expression of our own views.

The order of the general term should be reversed and that of the special term affirmed, with costs.

All concur.

Ordered accordingly.