114 N.E. 399 | NY | 1916
The plaintiff seeks to recover, under the statute (Code of Civil Procedure, sections 1902-1905), the damages for a neglect of the defendant through which his intestate was killed while crossing, upon a highway, the tracks of defendant. The entire evidence at its close was submitted to the trial justice through motions for a dismissal of the complaint, the direction of a verdict for the defendant, and the direction of a verdict for the plaintiff. The justice directed a verdict in favor of the plaintiff. The consequent judgment was unanimously affirmed by the Appellate Division. The chief judge of this court granted the defendant leave to appeal to it.
The tracks of the railroad at the highway crossing ran easterly and westerly. The intestate, in a farm wagon drawn by a team of horses which he was driving, stood on the southern side of and about twenty feet from the east-bound or southern track, while a west-bound freight *346 train passed on the west-bound or northern track over the crossing, and then drove upon the crossing. The evidence permitted the trial judge to find: The engine of an east-bound passenger train going at the rate of fifty miles an hour collided with the wagon at five o'clock and forty minutes in the morning of March 3, 1909; the sun had not risen and a mist or fog prevailed; the crossing was unprotected except for an automatic electric signal bell, which was out of order and was ringing and rang continuously; no warning of the approach of the east-bound train was given by the sounding of the bell or whistle of its engine, and the passing freight train made considerable noise. Those findings supported the conclusion that the defendant was negligent.
The view of the intestate toward the west, as he stood waiting for the passing of the freight train, and as he passed on northerly to a point about ten or fifteen feet from the east-bound track, was obstructed; the heads of the horses were twelve or fourteen feet north of the intestate, and the horses were upon the east-bound track at the time the intestate could first have seen the approaching engine; the engine was not less than one hundred and twenty-five feet and not more than two hundred and twenty-five feet from the crossing, and was traveling at the rate of about seventy-three feet in a second at the time the intestate could have first seen it or the train. While the evidence in regard to the view of the approaching train practicable to the intestate was in direct contradiction, it supports as facts those statements. Our decision in Parsons v.Syracuse, B. N.Y.R.R. Co. (
The appeal presents the more serious question, whether or not there had been a valid settlement and release of the cause of action by the beneficiaries of it, through and by the acts of the Imperial Russian consul-general at New York. On October 6, 1909, the defendant paid the Imperial Russian consul-general, through the vice-consul, four hundred dollars in full settlement of all claims and demands against it for the death of the intestate and the consul-general executed and delivered to the defendant a receipt of the amount "in full settlement of all claims and demands against the company for the death" of the intestate, and, in the name of the widow "as wife and Admx.," a release "for myself, my heirs, my executors, administrators and assigns" from all claims and demands arising or growing out of the death. The next of kin of the intestate were three infant children residing with their mother in the village of Ozero, province of Volhynia, Russia. The four hundred dollars were paid to the Russian authorities of that province and by them deposited in a local bank to the credit of the heirs of the intestate. The appellant asserts and argues that the transaction constituted, by virtue of a power given the consul-general by the treaty to be referred to, a settlement of the cause at action. *348
Through the year 1909, a treaty between the United States and Russia contained the clause: "The two contracting parties shall have the liberty of having, in their respective ports, Consuls, Vice-Consuls, Agents and commissaries of their own appointment, who shall enjoy the same privileges and powers, as those of the most favored nations." The appellant correctly asserts that under this clause the powers of the Russian consul and vice-consul in the matter of settling with and releasing the defendant from the damages arising from the death of the intestate were equal to those given the consular representatives of any other nation by a treaty with the United States, and specifically refers us to the provision of the then existing treaty with Spain: "The Consuls-General, Consuls, Vice-Consuls or Consular Agents of the respective High Contracting Parties shall have, under the laws of their country and regulations of their own Government so far as compatible with local laws, the right of representing the absent, unknown or minor heirs, next of kin or legal representatives of the citizens or subjects of their country, who shall die within their consular jurisdiction; as well as those dying at sea whose property is brought within their consular district; and of appearing either personally or by delegate in their behalf in all proceedings relating to the settlement of their estate until such heirs or legal representatives shall themselves appear. Until such appearance the said consular officers shall be permitted, so far as compatible with local laws, to perform all the duties prescribed by the laws of their country and the instructions and regulations of their own Government for the safe-guarding of the property and the settlement of the estate of their deceased countrymen."
An assertion of the respondent is that the record contains no evidence that the deceased was at the time of his death a citizen of Russia or a subject of the Czar of Russia. The complaint alleges: "That the said Stephen Mistschook was at the time of his death a resident of *349
Rockland County and left him surviving a widow and three minor children, Eva Mistschook, Julien Mistschook and Elarion Mistschook, all dependent upon him for support and all aliens resident in Russia, Europe." The answer alleges that the intestate was, at the time of his death a subject of the Emperor of Russia. The counsel for the plaintiff, upon the trial, in the opening of the case to the jury, stated that the intestate came to this country from Russia and had arranged to bring his wife and three children to this country to make them citizens of it. Through a deposition, the widow testified that on March 3, 1909, she was and prior thereto and since November 3, 1896, had been the wife of the intestate; that they were married in the village of Ozero, province of Volhynia, Russia; that they lived at Ozero until 1907, when the intestate said good-bye to her there, telling her he was going to America. He arrived in the United States about February, 1907. He was thirty-two years old at the time of his death. The record does not disclose the country of his birth. It was thus proven that the intestate was an alien; that at the age of twenty he resided and married, and through the succeeding twelve years resided, in Russia; that his wife and children continued until his death to reside and receive there their support from him, and were aliens. The facts created the presumption that he was, while a resident, a citizen of Russia. The relation is presumed to have continued until a change of citizenship is proved. (Shelton v. Tiffin, 6 How. [U.S.] 163, 185; Hauenstein v. Lynham,
We turn next to the question, did the consul-general have the right to settle the cause of action belonging to the widow and next of kin. The alienage of the beneficiaries of the cause of action does not affect their rights under the statute (Alfson
v. Bush Co.,
At the outset it should be comprehended that under our statute the cause of action is created by the statute and is original and not derivative. It is not a part of, and has no relation with the estate of the decedent. The damages are allowed, not for an injury to his estate, but for an injury, through the loss of him, to the estate of the beneficiaries. The executor or administrator of the decedent is a mere nominal party, without any interest in the damages, holding them, when recovered, in the capacity of a trustee or agent for the beneficiaries. (Hegerich v. Keddie,
The rights of consuls and consular officials rest on international law as well as on treaty stipulations. International law regards them as mercantile agents of the government appointing them, authorized to protect the commercial interests of its citizens or subjects in the country to which they are accredited and clothed only with authority for commercial purposes; to conserve and guard the property within their territorial jurisdiction of their countrymen dying therein is important among their rights and duties. (The Anne, 3 Wheat. 435; Seidel v. Peschkaw,
The Federal Constitution declares a valid treaty the *352
supreme law of the land. (Article VI.) Where a treaty affects the rights of litigants, it binds those rights and is as much to be regarded by the court as an act of Congress. (United States v.Schooner Peggy, 1 Cranch, 103; Whitney v. Robertson,
The particular language of the Spanish treaty which, the appellant asserts, gave the consul-general the right to settle the claim, is that giving to consular officers "the right of representing the absent, unknown or minor heirs, next of kin or legal representatives of the citizens or subjects of their country, who shall die within their consular jurisdictions; * * * and of appearing either personally or by delegate in their behalf in all proceedings relating to the settlement of their estate until such heirs or representatives shall themselves appear * * * so far as compatible with local laws." The argument is, the right of "representing" is the right to do for the represented persons whatsoever they might have done for themselves, and the clauses quoted contemplate a representation without as well as with judicial proceedings. No legislative or judicial law of Russia or the state forbade the representation.
It is manifest that the language does not clearly and with certainty warrant the application and effect given it by the appellant. It is not clear that the language has any application to the widow and children of the intestate as the owners of the claim or property, which is theirs not by devolution or succession and as a part of the estate of the intestate, but through original and primary ownership. Our inquiry, therefore, is as to what, in *353
such respect, was intended in the quoted language by the contracting governments, and in pursuing it we should adopt the same general rules, which are applicable in the construction of statutes, contracts and written instruments generally. The entire provisions of the treaty relevant to the inquiry are to be studied, the words used are to be given their natural and ordinary signification, a sensible and reasonable effect must be given unless the words forbid, and the cognate rules of international law and of the legislation of the government may be considered. (Matter of D'Adamo,
The construction urged by the appellant is not reasonable. It would permit consular officers to transfer, dispose of, or convert into a different form the property of the absent, unknown or minor heirs or next of kin of the citizens or subjects of their country who shall die within their consular jurisdiction. The vice-consul effected such a result in the present case. The right of action was a property right of the beneficiaries of it. (Matter of Meekin v. Brooklyn H.R.R. Co.,
There is no meritorious exception on the part of the appellant to the rulings of the trial justice in admitting or rejecting evidence.
The judgment should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, HOGAN, CARDOZO and POUND, JJ., concur.
Judgment affirmed.