98 N.Y. 377, Debevoise v. New York, L.E. & W.R. Co.

Citation:98 N.Y. 377
Party Name:JANET C. DEBEVOISE, as Administratrix, etc., Appellant, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent.
Case Date:March 03, 1885
Court:New York Court of Appeals

Page 377

98 N.Y. 377

JANET C. DEBEVOISE, as Administratrix, etc., Appellant,

v.

THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Respondent.

New York Court of Appeal

March 3, 1885

Argued February 5, 1885.

COUNSEL

Page 378

John W. Lyon for appellant. Defendant, by answering to the merits and proceeding to the trial, waived the objection that the wrong was committed in another State. That objection should have been taken by demurrer or answer. (Code, § § 488, 498, 499.)

Lewis E. Carr for respondent. Actions for damages for causing death are creations of statute. (2 Wait's Actions and Defenses, 471; 2 Thomp. on Neg. 1272, note.) Our statute, giving a right of action in such cases, has no extra-territorial effect, nor can our courts infer or presume that a similar statute exists in the State or country where the death was caused and occurred. The only presumption that can be indulged is that the common law exists there. ( Whitford v. R. R. Co., 23 N.Y. 465; Crowley v. R. R. Co., 30 Barb. 99; Beach v. Steamboat Co., Id . 433; McDonald v. Mallory, 77 N.Y. 546; Leonard v. Navigation Co., 84 Id . 48; Wilcox Silver Plate Co. v. Green, 9 Hun, 347; White v. Knapp, 47 Barb. 549; Holmes v. Broughton, 10 Wend. 75; Harris v. White, 81 N.Y. 532; Van Voorhis v. Brintnall, 86 Id . 18; People v. Chase, 28 Hun, 310; Abell v. Douglas, 4 Denio, 305; Starr v. Peck, 1 Hill, 270.)

EARL, J.

This action was brought to recover damages for negligently causing the death of James Debevoise, a brakeman in the service of the defendant. It was alleged in the complaint, and proved by uncontradicted evidence, upon the trial, that the death was caused at Penn Horn in the State of New Jersey. After the close of the plaintiff's evidence, and again at the close of the entire evidence, the defendant moved that the plaintiff be nonsuited upon several grounds, the first of which is, 'that it appears by the testimony that the death occurred in the State of New Jersey, and, therefore, that the statute of the State of New York under which this action was brought does not apply.'

This right of action depends entirely upon statute law. Such a right of action did not exist at common law. There was no

Page 379

proof that the common law of New Jersey had been changed or that any statute existed there authorizing an action to be maintained to...

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36 practice notes
  • 111 F.Supp. 393 (S.D.N.Y. 1952), Komlos v. Compagnie Nationale Air France
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • July 14, 1952
    ...'The right to bring a death action is purely statutory. It did not exist at common law (Debevoise v. New York, L.E. & W.R.R. Co., 98 N.Y. 377) and depends upon the existence of a statute creating a right of action at the place where the 'force impinged' causing injuries and death. Whitf......
  • 46 S.W.2d 591 (Mo. 1932), 29985, Rositzky v. Rositzky
    • United States
    • Missouri Supreme Court of Missouri
    • February 11, 1932
    ...the plaintiff a right of action for the alleged wrongful death of her husband. Gibson v. Railroad, 225 Mo. 473; Debevoise v. Railroad, 98 N.Y. 377; English v. Railroad, 146 N.Y.S. 963, 965; Louisville & N. Railroad Co. v. Williams, 113 Ala. 402, 21 So. 938; Hall v. Railroad Co., 241 Pa.......
  • 158 N.Y. 431, Embler v. Hartford Steam Boiler Inspection and Insurance Co.
    • United States
    • New York New York Court of Appeals
    • March 21, 1899
    ...upon which the action is brought is one of indemnity solely. (French v. Vix, 143 N.Y. 90; Debevoise v. N.Y. L. E. & W. R. R. Co., 98 N.Y. 377; Littlewood v. Mayor, etc., 89 N.Y. 24.) Within the rule of law recognized and established in this state, the pulp company had no insurable inter......
  • 428 P.2d 898 (Or. 1967), Casey v. Manson Const. & Engineering Co.
    • United States
    • Oregon Supreme Court of Oregon
    • June 14, 1967
    ...had no extraterritorial effect: Baldwin v. Powell, 294 N.Y. 130, 61 N.E.2d 412 (1945); Debevoise v. New York, L.E. & W.R.R. Co., 98 N.Y. 377, 50 Am.Rep. 683 (1895); McDonald v. Mallory et al., 77 N.Y. 546, 33 Am.Rep. 664 (1879); Crowley v. Panama Rail Road Company, 30 Barbour 99 (N.Y.18......
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36 cases
  • 111 F.Supp. 393 (S.D.N.Y. 1952), Komlos v. Compagnie Nationale Air France
    • United States
    • Federal Cases United States District Courts 2nd Circuit Southern District of New York
    • July 14, 1952
    ...'The right to bring a death action is purely statutory. It did not exist at common law (Debevoise v. New York, L.E. & W.R.R. Co., 98 N.Y. 377) and depends upon the existence of a statute creating a right of action at the place where the 'force impinged' causing injuries and death. Whitf......
  • 46 S.W.2d 591 (Mo. 1932), 29985, Rositzky v. Rositzky
    • United States
    • Missouri Supreme Court of Missouri
    • February 11, 1932
    ...the plaintiff a right of action for the alleged wrongful death of her husband. Gibson v. Railroad, 225 Mo. 473; Debevoise v. Railroad, 98 N.Y. 377; English v. Railroad, 146 N.Y.S. 963, 965; Louisville & N. Railroad Co. v. Williams, 113 Ala. 402, 21 So. 938; Hall v. Railroad Co., 241 Pa.......
  • 158 N.Y. 431, Embler v. Hartford Steam Boiler Inspection and Insurance Co.
    • United States
    • New York New York Court of Appeals
    • March 21, 1899
    ...upon which the action is brought is one of indemnity solely. (French v. Vix, 143 N.Y. 90; Debevoise v. N.Y. L. E. & W. R. R. Co., 98 N.Y. 377; Littlewood v. Mayor, etc., 89 N.Y. 24.) Within the rule of law recognized and established in this state, the pulp company had no insurable inter......
  • 428 P.2d 898 (Or. 1967), Casey v. Manson Const. & Engineering Co.
    • United States
    • Oregon Supreme Court of Oregon
    • June 14, 1967
    ...had no extraterritorial effect: Baldwin v. Powell, 294 N.Y. 130, 61 N.E.2d 412 (1945); Debevoise v. New York, L.E. & W.R.R. Co., 98 N.Y. 377, 50 Am.Rep. 683 (1895); McDonald v. Mallory et al., 77 N.Y. 546, 33 Am.Rep. 664 (1879); Crowley v. Panama Rail Road Company, 30 Barbour 99 (N.Y.18......
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