136 N.Y.S. 654 | N.Y. App. Div. | 1912
Lead Opinion
On the 3d of September, 1911, the defendant was operating a “ roller coaster ” at Coney Island, in the State of New York. The “ roller coaster” was constructed of a series of trestles about ten feet apart, on which a track was laid. Cars were run
The main question presented by the appeal is whether an administrator appointed in the State of New Jersey can maintain an action in the State of New York under section 1902 of the Code of Civil Procedure. I think such action can be maintained. The section referred to provides that “The executor or administrator off a decedent * * * may maintain an action to recover damages, for a wrongful act, neglect or default, by which the decedent’s death was caused, against a ¡natural person who, or a corporation which, would have been ¡liable to an action in favor of the decedent by reason thereof if death had not ensued.” Section 1836a of the Code of Civil Procedure provides, among other things, that “an executor or administrator duly appointed in any other State, territory or district of the United States, or in any foreign country, may sue or be sued in any court in this State in his capacity of executor or administrator in like manner and under like restrictions as a non-resident may sue or be sued, * * .(See Laws of 1911, chap. 631.)
In Lang v. Houston Street, etc., R. R. Co. (75 Hun, 151; affd., 144 N. Y. 717) it was held that an administrator to whom letters were issued in the State of Pennsylvania, upon which ancillary letters were issued in the State of New York, could maintain, in. the courts of New York, an action to recover damages resulting from the death of his tes
It is suggested that the distribution of the amount recovered under the laws of New Jersey is different from that under the laws of New York, but there is no evidence of that fact, and if there were it would make no difference, because the question of the distribution of the proceeds of the judgment, when collected, is not an issue nor,is there any such question before the court.
The intestate, at the time of her death, was forty-one years of age, she left her surviving the plaintiff, but no children. She had, during her married life, acted as housekeeper for her husband, keeping no servant. There is no evidence of any pecuniary loss to the husband, other than the loss of her services. Under such circumstances, it seems to me that an award of $7,500 is excessive, and for that reason the judgment and • order appealed from should be reversed, unless the plaintiff stipulates to reduce the same to $5,000, and if such stipulation be given, then the judgment is affirmed, without costs to either party.
Miller and Dowling, JJ., concurred; Ingraham, P. J., and Scott, J., dissented.
Dissenting Opinion
While I concede that the question is a narrow one, and not free from difficulty, I incline to the opinion that an action
Ingraham, P. J., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates as stated in opinion, in which event the judgment as so modified is affirmed, without costs. Order to be settled on notice.