216 A.D. 337, Rodrigues v. Transmarine Corp.

Citation:216 A.D. 337
Party Name:FRANK RODRIGUES, Appellant, v. TRANSMARINE CORPORATION, Respondent.
Case Date:March 26, 1926
Court:New York Supreme Court Appelate Division, Second Department

Page 337

216 A.D. 337

FRANK RODRIGUES, Appellant,

v.

TRANSMARINE CORPORATION, Respondent.

Supreme Court of New York, Second Department.

March 26, 1926

APPEAL by the plaintiff, Frank Rodrigues, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 30th day of October, 1925, granting defendant's motion to dismiss the complaint made on the ground that the court did not have jurisdiction of the person of the defendant.

COUNSEL

James A. Gray [William S. Butler and Joseph P. Bleckman with him on the brief], for the appellant.

George S. Brengle [Sawyer Thompson with him on the brief], for the respondent.

JAYCOX, J.

The defendant, Transmarine Corporation, is a corporation organized and existing under the laws of the State of New Jersey, with its principal office in the State of New Jersey. Its only office or place of business in the State of New York is in the county of New York.

Page 338

On July 18, 1925, a summons without complaint or notice was served on the defendant. The summons designated Kings county, a county where the defendant has no office or place of business, as the place of trial. The defendant having served a notice of appearance, a copy of the complaint was served and defendant moved the court for an order dismissing the complaint on the ground that the court did not have 'jurisdiction of the person of the defendant.' It is conceded that the purpose of the complaint was to allege a cause of action for personal injury to a seaman under section 33 of the Merchant Marine Act of 1920, enacted by the Congress of the United States (hereinafter referred to as the 'Jones' Act), which section amends section 20 of the Seamen's Act of 1915 (known as the La Follette Act) and provides as follows: 'Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.' (38 U.S. Stat. at Large, 1185, chap. 153, § 20, approved March 4, 1915, as amd. by 41 id. 1007, chap. 250, § 33, approved June 5, 1920. See, also, Barnes Federal Code Supp. § 7568; U.S. Comp. Stat. Supp. § 8337-a.) Before the passage of this statute, in June, 1920, a seaman could not sue for compensatory damages for negligent injury, unless the vessel upon which he was employed was unseaworthy. ( The West Jester, 281 F. 877.) If he was injured, whether through negligence or otherwise, he was limited at the most to wages, maintenance and cure. (See The Osceola, 189 U.S. 158.)

The respondent, in support of the order, cites Wienbroer v. U.S. Shipping Board E. F. Corp. (299 F. 972) and Caceres v. U.S. Shipping Board E. F. Corp. (Id. 968), but I do not consider those decisions binding upon this court. (Tammis v. Panama Railroad Co., 202 A.D. 226, 234; Lynott v. Great Lakes Transit Corporation, Id. 613, 619.) The question presented has, however, been passed upon by courts of this State, whose decisions I regard as binding, and they have reached their conclusions by reasoning

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which seems to me to be correct. This question was presented to this court in this department in Tammis v. Panama Railroad Co. (supra) and we held (opinion by KELLY, J.) that the Supreme Court of Richmond county had jurisdiction. In that case this court said: 'Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance (Atlantic...

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