Wooden v. Western New York & Pennsylvania Railway Co. , 12 N.Y.S. 908 ( 1891 )

Titus, J.

The.defendant demurs to the plaintiff’s complaint, on the ground that the plaintiff has no legal capacity to sue, and that such action, under the statute in such case made and provided, must be brought by the administratrix of the goods, chattels, and credits of George W. Wooden in her representative capacity, and cannot be brought in the individual name of the plaintiff. Prom the complaint it appears that, on the 4th' day of January last, George W. Wooden, a resident of this city, employed as a brakeman by the defendant, was killed while in the performance of his duties at Parker’s station, in the state of Pennsylvania. It further appears that by the laws of Pennsylvania,- whenever the death of a person shall be caused by the unlawful violence or negligence of a person, the husband or widow and the children of such deceased shall be entitled to recover damages for such injury causing death, and that the amount so recovered shall go to them in the proportion that they would take other personal estate in case of intestacy; that the plaintiff, Laura Wooden, was the wife, and Gertrude E.Wooden, Charles W. Wooden, and George R. Wooden were the children, of said deceased, and are entitled in case of a recovery to such share as by the laws of that state they would be entitled-to in case the deceased had died intestate, possessed pf a personal estate. Under this statute, it has been held by the supreme court of Pennsylvania that the widow is entitled to bring suit, and the sum recov. ered shall go to the survivors, in the proportion they would take personal es tote in case of intestacy. Railroad Co. v. Decker, 84 Pa. St. 419. This construction of the statute by the courts of Pennsylvania is controlling on the courts of this state, and, if the statute of Pennsylvania be of similar import and character as the laws of this state in giving a right of action, then such action can be maintained in this state. Leonard v. Navigation Co., 84 N. Y. 48.

It appears that by the laws of Pennsylvania, when no suit is brought by the injured party during his life, the widow, children, or parents of the deceased, and no other relative, are entitled to recover damages for the injury. There would, under this statute, be no necessity for the, appointment of an administrator to bring an action, as the statute expressly names the persons who may bring such an action, and because the recovery does not belong to the estate of the deceased, to be treated as other assets are in the payment of debts, but to certain of his next of kin, the widow, children, or parents of the deceased. In this state “the executor or administrator of a decedent who has left, him or,her surviving, a husband, wife, or next of kin, 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 1902, Code Civil Proc. Such an action must be brought by the personal representatives of the deceased, and the damages, when recovered, are exclusively for the benefit of the wife or next of kin, and, when collected, must be distributed as' if they were unbequeathed estates. Section 1903, Id. The laws of the two states are very similar in their provisions giving a right of action for wrongfully causing the death of a person; and, if the proper person has been made plaintiff to bring this action, it can be maintained in this state.

It is claimed by the defendant’s counsel that the action should have been brought by the plaintiff as administratrix, and, not being brought by her in that capacity, it must fail. I am not aware of any statute of this state regulating the practice or providing who shall bring actions in cases like the one under consideration. This is what is generally known as a “ transitory action” in character, and, as this state has a similar statute giving a right of action in such cases, it may undoubtedly be brought here, it is said in Leonard y. Navigation Co., supra, that the remedy in-such cases is given by the courts of one state upon the principle of comity which is due by one sovereign state to another under similar circumstances. While the right to bring the action and the beneficiaries under the statute are the same in Pennsylvania as in this state, the person who shall bring the action is not the same. There it is the widow, children, and parents; here it is the executor or administrator. There no right of action exists in favor of such an officer, and no recovery can be had in her name as such representative; and as the courts of this state simply take jurisdiction and give effect to the statute of another state, and allow a recovery, can an action be maintained in this state by a person who is not authorized or recognized by the statute of Pennsylvania as having any right to. bring the action ? In Dennick v. Railroad Co., 103 U. S. 11, it was held that where the statute of Mew Jersey gave a right of action to the personal representatives for an injury resulting in the death of a person, caused by the-wrongful act or neglect of another, such an action was properly brought in this state by an administrator appointed under our laws, and that the suit, could only be brought to recover under that statute in the name of the personal representatives of the deceased. In Leonard v. Navigation Co., supra, the intestate was killed by the explosion of a boiler in the state of Connecticut, which was occasioned by the negligence of the defendant. The statute of that state gave a right of action to the representatives of a person killed by the negligence of any railroad company. It was held that the statute of Mew York was similar in character, and that an administrator appointed under-the laws of this state could maintain an action for the injury here. In Stallknecht v. Railroad, Co., 13 Hun, 451, in an action in the supreme court of this state for killing a person in New Jersey, the courts say that, “the cause of action having been created by the law of New Jersey, and conferred upon the personal representatives of the person killed, and she presenting her claim, this court is open for her redress. * * * The action is for the enforcement of a right of action created by another state, and conferred upon persons dwelling within our own.” In Books v. Borough of Danville, 95 Pa. St. 158, the supreme court, in speaking of the right of the husband to bring an action for the death of his wife, say: “Ho other persons have been clothed with the right, and hence no other persons can maintain such actions. The present action is brought by an administrator, * * * but the legislature has not declared that such a person can maintain such an action, and hence the right to do so does not exist. ” While in most of the states the action is required to be brought in the name of the personal representatives of the deceased, some of the authorities place the right to bring the action in another state than where the injury was received, upon the ground that the statute of such state expressly confers the right of action upon the administrator.

As it appears that the administrator cannot maintain an action in Pennsylvania, and that the action must be brought in the name of the persons designated by the statute, it is difficult to see howa person not authorized by the laws of that state to bring an action can come into this state, and, in express violation of the statute creating the right of action as construed by the courts of that state, bring an action in the name of an administrator. The right of action and the person who can maintain it, under the statute, are inseparable, and, when there is no person in being to bring an action to enforce the right answering to the description of those mentioned in the statute, no right •of action exists in favor of every one, and the benefit intended by the law necessarily falls for want of a proper party. The right of action and the 'right of the designated persons who may bring it are fixed by the statute creating it, and, if the action is brought in this state, it must be brought by the only party who has the right to maintain it in that state. The plaintiff is the widow of the deceased, and, under the law of Pennsylvania, is the _proper and only person who can maintain the action there, and it seems to me that in taking jurisdiction in this state only such parties can maintain the action as are designated by the statute giving the right of action. If these views are correct, it follows that the demurrer must be overruled, with ■costs.