162 Misc. 657 | New York County Courts | 1937
The plaintiff brought this action against the defendants to recover damages for injuries which she received in an automobile accident which happened in the Province of Ontario, Canada. She claims that, while she was riding as a passenger in an automobile owned by the defendant Cataract Storage Co., Inc., she was injured because of the negligence of the other defendant, Edna Elser, the operator of the car. The answers of both of the defendants, after denying the allegations of negligence in the complaint, set up as an affirmative defense the existence of a statute of the Province of Ontario, which reads as follows: “In any action brought for any loss or damage resulting from bodily injury to,
At the beginning of the trial defendants’ counsel made a motion for judgment on the pleadings and that the plaintiff’s complaint be dismissed on the ground that the doctrine of lex loci delictus applies. This motion was granted by the court, and a judgment was accordingly rendered in favor of the defendants. From this judgment the plaintiff appeals to this court. The sole question presented upon this appeal is whether or not the statute of the Province of Ontario, above quoted, prevents the plaintiff from prosecuting this action. The trial court held that, by reason of the existence of this Canadian statute, the plaintiff has no cause of action on the ground that she is governed by the Canadian law. In my opinion the ruling of the trial judge was correct.
A negligence action is one in tort, and the law is well settled that if no cause of action is created at the place of wrong, no recovery in tort can be had in any other State. (American Law Institute, Restatement of the Law of Conflict of Laws, § 384, subd. 2; Fitzpatrick v. International Railway Co., 252 N. Y. 127; Benton v. Safe Deposit Bank, 255 id. 260; Salimoff v. Standard Oil Co., 262 id. 220, 226; 12 C. J. p. 453, § 35; 45 id. pp. 1046, 1047, § 605; Haus v. Erie R. R. Co., 89 Misc. 416; United Transportation Co. v. Hass, 91 id. 311, 315.)
Counsel for the appellant argues in his brief that “ the Canadian statute denying a gratuitous guest in an automobile redress against the owner or operator of an automobile for personal injury caused by the automobilist’s negligence, is so contrary and repugnant to our declared public policy that the courts will not enforce it in our State.” He cites several cases to sustain this proposition, but, in my opinion, they are not applicable to this case. In all of those cases the main question to be determined was whether an action may be maintained in our courts upon a cause of action accruing
The judgment of the City Court of Rochester, Civil Branch, is affirmed, with twenty-five dollars costs.