8 N.Y.2d 44 | NY | 1960
In this action a judgment was awarded plaintiff, after trial, for the wrongful death of her husband, who was killed in Virginia when the car he was driving collided with a tractor-trailer owned by defendants and operated by one of their employees. The Appellate Division reversed on the ground that a judgment in favor of defendants herein—as plaintiffs in a Virginia property damage action wherein this plaintiff was a party defendant in both her individual and representative capacities—was res judicata.
The decretal part of the letters of administration issued to plaintiff by the Surrogate’s Court of Bronx County expressly
Under Virginia law, which is controlling here (Baldwin v. Powell, 294 N. Y. 130, 132; Hinchey v. Sellers, 7 N Y 2d 287, 295-296), it was decedent whom she represented, whether acting as administratrix of the general estate or as statutory trustee (Hoffman v. Stuart, 188 Va. 785, 793), since the Virginia wrongful death statutes do not create a new and original cause of action—as does the New York .statute — “ but simply continue, transmit, or substitute the right to sue which the decedent had until his death ” (Street v. Consumers Min. Corp., 185 Va. 561, 570; see, also, Brammer v. Norfolk & Western Ry. Co., 107 Va. 206, 213-214). Plaintiff had every reason to appear in the Virginia action in her representative capacity, not only in an effort to safeguard the assets of the estate but also to preserve and protect her cause of action for wrongful death, which she was duly authorized .to commence and which she had in fact previously instituted in the State of New York (see Hoffman v. Stuart, supra, at pp. 792, 793, 799; see, also, Complete Auto Tr. v. Bass, 229 S. G. 607, 612). Since plaintiff had her full day in court in Virginia in her representative capacity, she was properly held barred from relitigating the same issues of negligence which were tried and decided adversely to her in the Virginia property damage action.
The judgment should be affirmed, without costs.
Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Burke and Foster concur.
Judgment affirmed.