138 N.Y.S. 478 | N.Y. App. Div. | 1912
The question involved in this appeal is whether the complaint states a cause of action of which the courts of this State should take jurisdiction. A demurrer to the complaint was sustained at Special Term,, with leave to the plaintiff to amend his pleading, and on his refusal to do so a final judgment was entered dismissing the complaint, and from this judgment the plaintiff has appealed.
From the complaint it appears that the plaintiff is the administrator of the estate of one George Zeikus, who, at the time of his death, was a resident of Kings county, in this State, and who was killed in the State of Florida through the alleged negligence of the defendant. The decedent left him surviving no widow or children, or any person dependent upon him for sup
Where, however, the parties preferred by that statute did • not exist, and the right of action went to the executor or administrator of the decedent, then it was held, that such right of action was a general asset of the estate of the decedent and any recovery thereon was distributable in the same manner as any other asset of the decedent, and the next of kin, not within the favored class, took the proceeds of the recovery in the same manner as if any general assets, after the payment of the debts of the decedent. In this respect the Florida statute differs from our own in that in this State such a recovery under our statute would go to the next Of kin, in this case the father of the decedent, free from any claim of creditors of the decedent. It was likewise declared in the Florida case above cited, that when the right of action went to the executor or administrator of the decedent, “ the recovery should be the pecuniary value at the decedent’s death of the prospective earnings and savings [which] from the evidence could reasonably have been expected but for the death of the decedent.” And it was said further: “ In the nature of things an exact and uniform rule for measuring the value of the life of a deceased person to designated beneficiaries or to his estate is not practicable, if possible. The elements which enter into the value of a life to the estate of a deceased person are so various and contingent that they must be left under proper instructions from the court to the determination of the jury based on proper testimony applicable to the particular case. The jury have no arbitrary discretion, but. among other proper elements they may consider evidence as to the age, probable duration of life, habits of
It may be noted that all of these elements would be proper subjects of consideration by the jury had the cause of action arisen under the laws of the State of New York. The chief difference between the Florida statute and our own is that our statute excludes • possible creditors under all circumstances, while under the Florida statute the claims of creditors of the decedent are protected when the cause of action goes to the executor or administrator, in default of husband or wife or minor children, or dependents of the decedent. There are but few cases in this State on the question of when our courts may assume jurisdiction of such a right of action arising under a foreign statute. It is said generally that this question of assumption of jurisdiction is to be determined with regard to our own public policy and that where the remedy given by a foreign statute is the same or substantially the same as that given by our own statute where the cause of action arose in this State, then our courts, in proper cases, should assume jurisdiction of the cause of action under the foreign statute whenever it has acquired jurisdiction of the necessary parties. A right of action of this character is said to be transitory and to exist not only where it arose but in every place in which the proper parties for its enforcement may be found. (Leonard v. Columbia Steam Navigation Co., supra; Dennick v. Railroad Co., 103 U. S, 11; Higgins v. Central New England, etc., R. R. Co., 155 Mass. 176.) In the Leonard case our courts enforced a cause of action of this kind, arising under the statutes of Connecticut where the main purpose of the foreign statute was similar to our own, though the remedy granted was afforded through a statutory survival of the decedent’s cause of action, while under our statute there was no survival of a pre-existing right of action but the creation of an entirely new and independent right of action and remedy therefor. In Wooden v. Western New York & P. R. R. Co. (126 N. Y. 10) our courts enforced a similar right of action arising under a Pennsylvania statute, although the action was brought by a widow, as provided under the foreign statute, while for a cause of action arising under our own statute only the personal
As has been pointed out earlier in this opinion, the Florida statute differs from our own practically in the detail that if there be no husband or wife, or minor children, or persons dependent upon the decedent for support, then the other next of kin take subject to the claims of creditors of the decedent. In view of the fact that the complaint alleges that there are no creditors of the decedent, and the defendant by demurring has admitted this allegation, it may not be proper, as it is not necessary, to discuss the question of jurisdiction from a viewpoint as if there were creditors, leaving that question to be disposed of when it arises necessarily. The learned court at Special Term was of opinion that the complaint was defective fatally in that it did not contain an affirmative allegation that the person for whose benefit this action was brought was a resident of this State, and in reaching such conclusion it felt itself bound by the opinion in Zeikus v. Florida East Coast Railway Co. (144 App. Div. 91). The decision in that case was based upon a complaint less ample than the one before us, and we do not find that in that case the learned court in the First Department attempted to base its decision upon any doctrine to the effect that where an action was brought under a foreign statute by the administrator of a decedent who was a resident of this State, our courts would not entertain jurisdiction unless the parties entitled to share in or take the whole of the recovery were residents of this State. We think that the question of the residence of the next of kin of the decedent is not an essential in conferring jurisdiction upon this court where, as in this case, the decedent was a resident of this State and the administrator was appointed by the courts of this State. We are of opinion that the Supreme Court of this State could, and under the circumstances shown in the complaint should, have taken jurisdiction of the cause of action sét forth therein.
The judgment should be reversed, with costs, and the demurrer to the complaint should be overruled, with thirty dollars
Jenks, P. J., Hirschberg, Burr and Thomas, JJ., concurred.
Judgment reversed, with costs, and demurrer overruled, with thirty dollars costs, with leave to defendant to answer within twenty days on payment of costs as aforesaid.