Mackay v. Central R. Co.

Citation4 F. 617
PartiesMACKAY, Administratrix, etc. v. CENTRAL R. CO.
Decision Date08 November 1880
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

SHIPMAN D.J.

The complaint in this case alleges that on April 23, 1874, Louisa S. Mackay died, and subsequently letters of administration upon her estate were duly granted to the plaintiff, a resident of the city of New York, by the surrogate of the county of New York; that the plaintiff duly qualified and entered upon the discharge of the duties of said office; that the defendants are a corporation created under the laws of the state of New Jersey, and are common carriers of passengers between the cities of New York and Jersey City and on April 23, 1874, received Louisa S. Mackay, in New York, into one of their ferry-boats as a passenger, to be transported to Jersey City, and so unskilfully conducted themselves that in consequence of their negligence she fell between the end of the boat and the pier, at Jersey City, and was drowned. The complaint further alleges that by an act of the legislature of New Jersey, passed March 3, 1848, it was provided: '(1.) Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, and the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony. (2.) Every such action shall be brought by and in the names of the personal representatives of such deceased person, and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin in the proportions provided by law in relation to the distribution of personal property by persons dying intestate; and in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to the wife and next of kin of such deceased person: provided, that every such action shall be commenced within 12 calendar months after the death of such deceased person.'

After the jury was empanelled, and before any evidence was taken the defendants moved to dismiss the complaint, because the plaintiff, an administratrix in the state of New York, and appointed solely under its laws, has no power or authority by virtue of the statute of the state of New Jersey, to sue for and recover damages for the death of the intestate-- a question which, it was conceded by the plaintiff, is clearly presented upon the pleadings. It is manifest that the right of an...

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1 cases
  • Richter v. East St. Louis & S. Ry. Co.
    • United States
    • U.S. District Court — Eastern District of Missouri
    • 23 Mayo 1927
    ...Co. v. Marvin (C. C. A.) 59 F. 91, Sanbo v. Coal Co. (C. C.) 130 F. 52, Lyon v. Boston, etc., Ry. Co. (C. C.) 107 F. 386, Mackay v. Central, etc., Ry. Co., 4 F. 617, Fed. Cas. No. 8,842, and many others, are squarely opposed, yet what seems to be the controlling point in the case, namely, w......

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