98 N.Y. 377 | NY | 1885
This action was brought to recover damages for negligently causing the death of James Debevoise, a brakeman in the service of the defendant. It was alleged in the complaint, and proved by uncontradicted evidence, upon the trial, that the death was caused at Penn Horn in the State of Mew Jersey. After the close of the plaintiff’s evidence, and again at the close of the entire evidence, the defendant moved that the plaintiff be nonsuited upon several grounds, the first of which is, “ that it appears by the testimony that the death occurred in the State of Mew Jersey, and, therefore, that the statute of the State of Mew York under which this action was brought does not apply.”
This right of action depends entirely upon statute law. Such a right of action did not exist at common law. There was no
It was not necessary for the defendant to allege in its answer that the death occurred in New Jersey, and that there was no statute there authorizing the maintenance of this action. The plaintiff was bound to show, both by his complaint and proofs, that he had the right upon the law and the facts to maintain his action; and this is a case, therefore, of the failure of facts to constitute a cause of action, both in the complaint and the proofs, and the defendant could take advantage thereof at the trial.
We are, therefore, of opinion that the judgment should be affirmed, with costs.
Judgment affirmed.