138 N.Y.S. 944 | N.Y. Sup. Ct. | 1912
The Appellate Division decision herein (149 App. Div. 900), upon the appeal from the order denying the defendant’s motion to compel a reply to the separate defense contained in its answer, that the employee’s compensation law of the empire of Germany was a bar to the ¡maintenance of this action, ruled that such defense should be replied to. This decision seems to me to hold, in effect, that the law, if proved, would constitute a complete defense. This law as proved upon the trial is even more comprehensive than the statement of it quoted from the answer by Mr. Justice Burr who wrote for the Appellate Division. It is now shown not alone that thé law provides as the exclusive remedy for an employee injured either through his master’s negligence or the hazards of the service a resort to the fund created by the sea accident insurance law of Germany, but, further, that such fund is the creation of the mutual contributions of both employer and employee under and pursuant to such law, and that it is only under the terms of the law that the employee is taken into and
In the Dyke case, supra, 117, the court says: “ It cannot be assumed that the parties intended to subject the contract to the laws of the other States, or that their rights and liabilities should be qualified or varied by any diversities that might exist between the laws'of those States and the lex loci contractus. * * * Whether the actions are regarded as actions of assumpsit upon the contracts, or as actions upon the case for negligence, the rights and liabilities of the
In Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397, Mr. Justice Gray (p. 448) quotes from the case of Peninsular & Oriental Steam Nav. Co. v. Shand, 3 Moore P. C. (N. S.) 272, 290, as follows: “ The general rule is that the law of the country where a contract is made governs as to the nature, the obligation and the interpretation of it. The parties to a contract are either the subjects of the power there ruling, or as temporary residents owe it a temporary allegiance; in either case equally, they must be understood to submit to the law there prevailing, and to agree to its action upon their contract. It is, of course, immaterial that such agreement is not expressed in terms; it is equally an agreement in fact, presumed de jure, and a foreign court interpreting or enforcing it on any contrary rule defeats the intention of the parties, as well as neglects to observe the recognized comity of nations.”
/ The conclusion is reached that the German law is a bar to the maintenance of this action, and the motion to set aside the verdict and for a new trial is granted.
Motion granted.