130 Misc. 755, Sapone v. New York Cent. & H.R.R. Co.

Citation:130 Misc. 755, 225 N.Y.S. 211
Party Name:NICOLA SAPONE, as Administrator, etc., of PAUL SAPONE, Deceased, Plaintiff, v. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant. GIOVANNI MARTINA, as Administrator, etc., of CAMBELLA SAPONE, Deceased, Plaintiff,
Case Date:November 15, 1927
 
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Page 755

130 Misc. 755

225 N.Y.S. 211

NICOLA SAPONE, as Administrator, etc., of PAUL SAPONE, Deceased, Plaintiff,

v.

NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant. GIOVANNI MARTINA, as Administrator, etc., of CAMBELLA SAPONE, Deceased, Plaintiff,

v.

NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

Supreme Court of New York, Monroe County.

November 15, 1927

Motion by defendant for nonsuit and dismissal of complaints in both cases.

The motions for nonsuit and for dismissal of the complaints must be granted. So ordered.

SYLLABUS

Plaintiffs, as administrators of the estates of two victims of a fatal automobile accident in the Province of Quebec, have no legal capacity to sue to recover for the alleged negligence of the defendant in causing their deaths, since section 1056 of the Civil Code of Lower Canada, which governs as to the substantive rights of plaintiffs and gives any authority there may be for suit, bars an executor or administrator from suing in such an action as this; the statute of said Province limits the right to sue to the consort and the ascendant and descendant relatives of the deceased.

While section 192 of the Civil Practice Act gives the court at any stage of the action the authority to add or substitute new parties, if proper parties could or should be substituted herein, they would be foreclosed from prosecuting the actions under a provision of section 1056 of the Civil Code of Lower Canada which sets up a one-year Statute of Limitations in a death action.

Defendant did not waive its objection that plaintiffs have no legal capacity to sue by having failed to move either to dismiss the complaints on that ground or for judgment on the pleadings, so that under the circumstances plaintiffs' complaints must be dismissed.

COUNSEL

Harris, Beach & Matson [Carroll N. Whitman of counsel], for the defendant, for the motion.

John J. McInerney, for the plaintiff, opposed.

RIPPEY, J.

[225 N.Y.S. 213] The above-entitled actions numbered 17 and 22 respect ively on the present Trial Term calendar of this court, were, upon motion of defendant, consolidated under section 96 of the Civil Practice Act.

The cases went to trial, plaintiffs' proofs are in and defendant now moves for a nonsuit and a dismissal of the complaints upon various grounds. The only two grounds which need be considered are (1) that plaintiffs have failed to establish the freedom

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of plaintiffs' intestates from negligence contributing to the accident and to their deaths; and (2) that plaintiffs have failed to establish a cause of action against the defendant.

On July 3, 1925, one Joseph Fortuno of Rochester, N. Y., set out with his automobile on a trip to Montreal. He had with him four passengers, one Laura...

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