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Howlan v. New York & N.J. Telephone Co.

Supreme Court of New York, Appellate Division

March 3, 1909

HOWLAN
v.
NEW YORK & N. J. TELEPHONE CO.

Appeal from Special Term, Oneida County.

Action by Patrick Howlan, as administrator of James Howlan, against the New York & New Jersey Telephone Company. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals. Reversed, and demurrer sustained, with leave to plead over.

Jerome S. Seacord, for appellant.

A. Lee Olmsted, for respondent.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

[115 N.Y.S. 317] MCLENNAN, P. J.

The facts which are alleged in the complaint as to the appointment of plaintiff as administrator of the decedent's estate, the happening of the accident, the death of plaintiff's intestate, the negligence of the defendant, and the decedent's freedom from contributory negligence concededly constitute a cause of action in plaintiff's favor if the accident had occurred within this state; but it is alleged that the accident and death occurred in the state of New Jersey, and was occasioned by the negligence of the defendant, which occurred in that state. The only allegation in the amended complaint which it is claimed entitles the plaintiff in this action to recover damages for the death so occurring is in paragraph VI, which is as follows:

" VI. Plaintiff further alleges, upon information and belief, that at the time of the injury and death of the plaintiff's intestate, and at the time of the commencement of this action, there was and now is a statute of the state of New Jersey, duly passed and adopted by the Legislature of the said state of New Jersey, and duly signed by all the proper officers of the said state of New Jersey, and in force, entitled ‘ An act to provide for the recovery of damages in cases where the death of a person is caused by a wrongful act, neglect or default,’ the same being an act of the Seventy-Second Legislature of the state of New Jersey, and that this action is brought pursuant to the provisions and in accordance with the rights granted to the plaintiff by virtue of the said statute of the said state of New Jersey."

The demurrer only challenges the sufficiency of such allegation. It will be seen:

" That this action is brought pursuant to the provisions and in accordance with the rights granted to the plaintiff by virtue of said statute of the state of New Jersey."

But there is no allegation showing what the provisions of such statute are, or that it is similar to our statute. Indeed, there is nothing alleged which indicates that the statute relates to actions for negligence, save the title of the act, which is:

" An act to provide for the recovery of damages in cases where the death of a person is caused by a wrongful act, neglect or default."

But whether such title is part of the statute under the laws of New Jersey does not appear. Where a right of action for negligence depends upon a statute of a foreign state, it can only be maintained in the courts of this state upon proof that the statute of the state in which the injury occurred gives the right of action and is similar to our own. Wooden v. Western New York & Pennsylvania R. R. Co., 126 N.Y. 10, 26 N.E. 1050,13 L.R.A. 458,22 Am.St.Rep. 803.In order to entitle a plaintiff to make proof of such facts, it is necessary that they should be alleged. In the case at bar it is nowhere alleged in the complaint that the statute of New Jersey referred to gives the plaintiff a right of action as for the negligence of the defendant which resulted in an accident in that state, or that the facts constituting the alleged negligence set forth in the complaint are actionable in the state of New Jersey.

It seems to be well settled that the mere statement in a complaint that a statute of a foreign state exists, giving its title and date of passage, is not a sufficient allegation to constitute a cause of action enforceable [115 N.Y.S. 318] in the courts of this state. In the case of Rothschild v. Rio Grande Western R. R. Co., 59 Hun, 454, 13 N.Y.Supp. 361, it is said in the opinion:

" The demurrer is upon the grounds that the laws of Colorado and Utah are facts which must be pleaded, and that the bare allegation that under these laws the liabilities of the consolidating companies became attached to the defendant and enforceable against it is insufficient to constitute a cause of action. We think the demurrer was well founded. The allegation is not a statement of fact, but of a legal conclusion from undisclosed facts. It is, in effect, saying that under foreign laws, of which we know nothing, one person has become liable for another person's debts, and it differs in no substantial particular from an allegation, which has always been treated as a mere conclusion, that the defendant is indebted to the plaintiff. It is clear that the foreign law should have been pleaded. The law of a foreign state is a fact to be alleged and proved like any other fact. It is not necessary to plead the ...

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