13 N.Y.S. 645, Gurney v. Grand Trunk Ry. Co. of Canada

• Citation: 13 N.Y.S. 645
• Opinion Judge: O'Brien, J.
• Party Name: Gurney v. Grand Trunk Ry. Co. of Canada
• Attorney: Sprague, Morey, Sprague & Brownell, (George F. Brownell, of counsel,) for appellant. Benjamin B. Foster, for respondent.
• Judge Panel: Argued before Van Brunt, P. J., and Daniels and O'Brien, JJ. Daniels, J., concurs. Van Brunt, P. J., concurring.
• Case Date: March 13, 1891

Page 645

13 N.Y.S. 645

Gurney

v.

Grand Trunk Ry. Co. of Canada

Supreme Court of New York, General Term, First Department

March 13, 1891

Appeal from special term, New York county.

Action by Frederick B. Gurney, as administrator of Launcelot S. Gurney, deceased, against the Grand Trunk Railway of Canada. Defendant appeals from an interlocutory judgment overruling its demurrer to the complaint. Code Civil Proc. N.Y. § 488, provides: "The defendant may demur to the complaint where one or more of the following objections thereto appear upon the face thereof: (1) That the court has not jurisdiction of the person of the defendant; (2) that the court has not jurisdiction of the subject of the action," etc. Code Civil Proc. N.Y. § 1780, provides: "An action against a foreign corporation may be maintained by another foreign corporation, or by a non-resident, in one of the following cases only: (1) Where the action is brought to recover damages for the breach of a contract, made within the state, or relating to property situated within the state, at the time of the making thereof; (2) where it is brought to recover real property situated within the state, or a chattel, which is replevied within the state; (3) where the cause of action arose within the state, except where the object of the action is to affect the title to real property situated without the state.

Judgment affirmed, with costs.

Sprague, Morey, Sprague & Brownell, (George F. Brownell, of counsel,) for appellant.

Benjamin B. Foster, for respondent.

Argued before Van Brunt, P. J., and Daniels and O'Brien, JJ. Daniels, J., concurs. Van Brunt, P. J., concurring.

OPINION

Page 646

O'Brien, J.

The facts alleged in the complaint and conceded by the demurrer are that the defendant company, being a common carrier of passengers, on the 28th day of April, 1889, received the plaintiff's intestate as a passenger on its railway, and so negligently and unskillfully managed the cars and locomotive engine of the railway that the deceased, while exercising due care and caution, was killed thereby; that the plaintiff was duly appointed administrator of his estate by the surrogate of Kings county, N.Y.; that there was at that date, and still is, a statute in force in the dominion of Canada, where the decedent was killed, entitled "An act respecting compensation to the families of persons killed by accident and in duels," providing, among other things, that when the death of a...