Baldwin v. Powell

• Court: New York Court of Appeals
• Writing for the Court: LEHMAN
• Citation: 294 N.Y. 130,61 N.E.2d 412
• Parties: BALDWIN v. POWELL et al.
• Decision Date: 05 April 1945

294 N.Y. 130
61 N.E.2d 412

BALDWIN
v.
POWELL et al.

Court of Appeals of New York.

April 5, 1945.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Aura Baldwin, as administratrix of the estate of Charles H. Wiltsie, deceased, against L. R. Powell, Jr., and another, as receivers of the Seaboard Air Line Railway, to recover damages for death of plaintiff's intestate. An order of the Special Term of the Supreme Court, Hammer, J., entered in New York County, 45 N.Y.S.2d 785, denying a motion by the defendant for a dismissal of the complaint under Rules of Civil Practice, rule 106, on the ground that plaintiff had not legal capacity to sue, was reversed by the Appellate Division of the Supreme Court, which granted the motion, 268 App.Div. 640,47 N.Y.S.2d 665, and the plaintiff appeals.

Affirmed.

[61 N.E.2d 412]

Benjamin Levin, of New York City, for appellant.

William R. McDermott, of New York City, for respondents.

LEHMAN, Chief Judge.

The plaintiff, as administratrix of the estate of Charles H. Wiltsie, appointed by the Probate Court for the District of New Haven, State of Connecticut, where the deceased resided, has brought an action in the State of New York for damages to the estate of the deceased, resulting from his death in a collision within the State of Florida between a freight train and a passenger train, on which the deceased was employed as a conductor by the Pullman Company. The plaintiff alleges that the collision was caused solely by the negligence

[61 N.E.2d 413]

of the defendants who, as receivers of a railroad company, organized within the State of Florida, operated both trains. The defendants moved for judgment dismissing the complaint ‘pursuant to Rule 106 of the Rules of Civil Practice, upon the ground that it appears on the face of the complaint that the plaintiff has not legal capacity to sue in that she is the administrator of a deceased appointed under and pursuant to the laws of the State of Connecticut.’

The law of the place where the wrong causing death occurred ‘governs the right of action for death.’ Restatements, Conflict of Laws, s 391. The Decedent Estate Law, Consol.Laws, c. 13, provides in broad terms that ‘the executor or administrator duly appointed in this state, or in any other state * * * of a decedent who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused * * *’ (s 130); but this statutory provision applies only to actions brought for damages for a wrong committed here causing the death of a person. Whitford v. Panama R. Co., 23 N.Y. 465;Johnson v. Phoenix Bridge Co., 197 N.Y. 316, 90 N.E. 953;Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198. A right of action for the death of a person, which is created by another State where the wrong causing death was committed, may ordinarily be enforced in this forum even though the remedy provided in the statute creating the right of action may be different from the remedy provided in the death statute of New York. Loucks v. Standard...