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In re Application of Taylor

Supreme Court of New York, Appellate Division

May 5, 1911

In the Matter of the Application of SEXTUS E. TAYLOR, Appellant, to Compel SUSAN J. TAYLOR, as Administratrix, etc., of HOWARD E. TAYLOR, Deceased, Respondent, to Turn over Moneys that She Received Due to SEXTUS E. TAYLOR.

APPEAL by the petitioner, Sextus E. Taylor, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Orange on the 16th day of January, 1911, denying the petitioner's motion to have certain moneys turned over to him.

COUNSEL

George V. S. Williams [Edward Frank Glover with him on the brief], for the appellant.

Frank Lybolt, for the respondent.

Page 635

CARR, J.:

On August 5, 1910, one Howard Taylor, a resident of Orange county in this State, while engaged as a locomotive fireman by the Erie Railroad Company, a corporation of this State, met with an accident which caused his death. The accident happened through a collision between the locomotive of a train of cars and some rock and earth which had fallen upon the track. The train was at that time engaged in a trip from Port Jervis, in this State, to Jersey City, in the State of New Jersey, and the accident occurred within this State. Taylor left him surviving no children nor descendants, but only a widow and a father. The widow was appointed as administratrix of the estate of the decedent by the Surrogate's Court of Orange county. She brought an action as administratrix against the railroad company in the Supreme Court in Orange county to recover damages for the death of her husband. The defendant in that action thereupon made a written offer of judgment against it in the sum of $5,000. The plaintiff applied to the Surrogate's Court for its approval of the offer of compromise or judgment, and, such approval being granted, she accepted the offer and judgment was duly entered against the defendant in her favor, and the amount thereof was paid over to her in satisfaction. The decedent's father thereupon moved at Special Term in this court for an order directing the plaintiff in that action to pay over to him one-half of the net proceeds of the judgment, in accordance with our Statute of Distributions. This motion was denied, and an order was entered determining that the plaintiff, as widow of the decedent, was entitled to receive and retain for her own use all of the net proceeds of said judgment. From that order the decedent's father, Sextus E. Taylor, now appeals.

Actions by the personal representatives of deceased persons to recover damages for the death of the decedent through the wrongful act, negligence or default of another person, or of a corporation, are regulated in this State by sections 1902, 1903, 1904 and 1905 of the Code of Civil Procedure. These sections define the circumstances under which such actions may be brought, the extent of the recovery and the method of distribution of the damages recovered. In section 1903 (as amd. by

Page 636

Laws of 1904, chap. 515), which was in force prior to September 1, 1911 (Laws of 1911, chap. 122), it is provided that such damages 'are exclusively for the benefit of the decedent's husband or wife and next of kin; and * * * they must be distributed by the plaintiff, as if they were unbequeathed assets left in his hands after payment of all debts and expenses of administration.' By section 1905 the term 'next of kin,' as used in the foregoing sections, is defined to have the meaning specified in section 1870 of the Code. On reference to that section it is found that the term 'next of kin' includes all persons entitled, under the provisions of law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent after payment of debts and expenses, other than a surviving husband or wife. The provisions of law relating to the distribution of such personal property are to be found in section 98 of the Decedent Estate Law (Consol. Laws, chap. 13 [Laws of 1909, chap. 18], as amd. by Laws of 1909, chap. 240), and in subdivision 7 of said section it is provided as follows: 'If the deceased leave a father and no child or descendant, the father shall take one-half if there be a widow, and the whole if there be no widow.'

Sections 1902 to 1905 of the Code of Civil Procedure are but re-enactments of chapter 450 of the Laws of 1847, as amended by chapter 256 of the Laws of 1849 and chapter 78 of the Laws of 1870. In all of these acts the damages recoverable in the action authorized by them are set apart for the exclusive benefit of the husband or widow and next of kin of the decedent, to be distributed as if they constituted the net unbequeathed assets of the decedent's estate.

Section 18 of article 1 of our State Constitution provides that '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 subject to any statutory limitation.' The 'right of action' so referred to was the right of action given under the statute of 1847, as amended, and was a right of action given for the benefit of the husband or widow and next of kin of the decedent, and it was thus placed beyond any interference by the Legislature as to its essential elements. Yet all these provisions of our statutes and of our Constitution

Page 637

relate only to rights of action arising under our own laws, and not to rights of action given under foreign laws and enforced in our courts by a rule of comity. The accident in which the decedent Taylor met his death happened in this State, the defendant in the action was a corporation of this State, the plaintiff obtained her legal right to bring an action under the laws of this State, and the right of action was enforced in the courts of this State. It would follow, therefore, necessarily that the distribution of the proceeds of the judgment so obtained should be made according to the statutes of this State, unless the right of action did not arise under the laws of this State but arose under the laws of some other jurisdiction which provide a different scheme of distribution. When our courts assume jurisdiction of a right of action given under foreign laws, there is no obligation that such right of action shall be asserted wholly under our remedial forms, but it may be asserted in the form permitted under the foreign laws. At the same time such right of action cannot be enforced in our courts by comity beyond the extent of such remedial limitations as our public policy attaches to kindred rights of action arising under our own laws. ( Wooden v. Western New York & P. R. R. Co.,126 N.Y. 10.) The respondent here justifies the order made at Special Term on the theory that the judgment obtained in the action in this court was based upon a right of action given by the laws of the United States, and not by the laws of this State, though enforced by comity in our court, and the proceeds thereof must be distributed in the manner specified by the laws which give the right of action, though such method differs from our own. As a general proposition this is, no doubt, true enough in relation to rights of action enforced in our courts simply through the rule of comity. The question directly ...


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