194 F. Supp. 623 | S.D.N.Y. | 1961
The plaintiff executrix, a New York citizen, recovered a judgment against the defendant by reason of the death of her husband in an airplane crash which occurred over the District of Columbia. Jurisdiction in this Court rested upon diversity of citizenship, and under Erie R. R. Co. v. Tompkins
The plaintiff now moves to amend the judgment by including interest thereon from the date of decedent’s death to the date of entry of judgment. The District of Columbia Wrongful Death Act contains no provision for interest in such action. However, section 132 of the Decedent’s Estate Law of New York State specifically requires that the judgment upon entry shall include interest from the
However, the courts of New York have consistently held that section 132 is inapplicable in wrongful death actions where the substantive right of recovery is based upon the laws of a foreign state.
The constitution of New York State contains no provision reflecting any policy with respect to the allowance of interest in death actions or in any other type of action. Indeed it has been recognized that the allowance of interest in a particular type of cause of action is a matter of discretionary legislative policy.
The motion is denied.
. 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.
. 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L. Ed. 1477.
. D.C.Code, §§ 16-1201 to 16-1203. See St. Clair v. Eastern Air Lines, Inc., 2 Cir., 279 F.2d 119, certiorari denied 1960, 364 U.S. 882, 81 S.Ct. 171, 5 L.Ed.2d 104.
. Huot v. Dworman, 2d Dep’t 1959, 8 A.D.2d 829, 190 N.Y.S.2d 202 (mem.); Kiefer v. Grand Trunk Ry., 4th Dep’t 1896, 12 App.Div. 28, 42 N.Y.S. 171, affirmed on opinion below 1897, 153 N.Y. 688, 48 N.E. 1105. See Frasier v. Public Service Interstate Transp. Co., 2 Cir., 1958, 254 F.2d 132. Cf. Murmann v. New York, N. H. & H. R. R., 1932, 258 N.Y. 447, 180 N.E. 114 (per curiam).
. 1961, 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526.
. N.Y.Const. art. I, § 16, provides:
“[Damages for injuries causing death.] The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not be subject1 to any statutory limitation.”
. Purcell v. Long Island Daily Press Pub. Co., 1961, 9 N.Y.2d 255, 213 N.Y.S.2d 425, 173 N.E.2d 865.