Dodge v. Town of North Hudson

• Court: U.S. District Court — Northern District of New York
• Citation: Dodge v. Town of North Hudson, 188 F. 489 (N.D. N.Y. 1911)
• Decision Date: 26 June 1911
• Parties: DODGE v. TOWN OF NORTH HUDSON.

188 F. 489

DODGE v. TOWN OF NORTH HUDSON.

United States Circuit Court, N.D. New York.

June 26, 1911

Miller & Matterson, for plaintiff.

Salisbury & Rowe, for defendant.

RAY District Judge.

For the purposes of this case on this demurrer, the facts are as follows: On the 26th day of July, 1908, James E. Dodge, a resident and citizen of the state of Massachusetts, was rightfully traveling in his automobile upon one of the highways of the town of North Hudson, one of the towns of the county of Essex, N.Y. By reason of defects in its said highway and a bridge or its approaches forming a part of said highway existing because of the neglect of the commissioner of highways of said town, the plaintiff's intestate James E. Dodge, with his vehicle, was thrown out of the beaten track and down an embankment, and Dodge was killed and his automobile substantially ruined. There were damages to both person and property sustained by reason of such defects existing by reason of such negligence in excess of the sum of $2,000 exclusive of interest and costs as to each cause of action.

The cause of action in these regards is pleaded with all necessary particularity.

Shortly thereafter, Josephine M. Dodge, the widow of said deceased was duly appointed administratrix of the estate, etc., of said James E. Dodge by the proper probate court of the state of Massachusetts, and on or about the 9th day of January 1909, she, as such administratrix, caused a definite and particular verified statement of the facts, cause of action, to be served on and presented to the supervisor of said town of North Hudson, and after the lapse of 15 days commenced the above action in this court to recover such damages under the statute of the state of New York permitting a recovery in such cases.

The defendant demurred to the complaint on the ground, with others, that, not having taken out ancillary letters of administration in the state of New York, she could not maintain the action in this jurisdiction, the United States Circuit Court for the Northern District of New York. This court sustained the demurrer on that ground-- that an executor or administrator appointed by the probate court of one state cannot maintain an action upon a cause of action existing in favor of the estate she represents in the courts, state or federal, of another state without taking ancillary letters in the state where the action is brought. 177 F. 986. This court followed J. B. & J. M. Cornell Co. v. Ward, 168 F. 51, 52, 93 C.C.A. 473; Van Doren v. Pennsylvania R. Co., 93 F. 260, 35 C.C.A. 282; Hodges v. Kimball et al., 91 F. 845, 34 C.C.A. 103; and Stewart v. Baltimore & Ohio Railway Co., 168 U.S. 445, 449, 18 Sup.Ct. 105, 106, 42 L.Ed. 537.

Following the cases mentioned, this court also held that a new action was not necessary, and permitted an amendment to the complaint after ancillary letters should be obtained. The plaintiff then took out ancillary letters of administration in the state of New York and amended her complaint by alleging the grant thereof in the state of New York, but, we infer, did not serve a new or amended notice of claim as none is alleged. The defendant claims that such a cause of action accrues when the notice of claim is presented to the supervisor of the town, and that in this case no one could serve or present the claim except an administratrix of the estate of said James E. Dodge appointed by the probate or surrogate's court of one of the counties of the state of New York to whom and to whom alone the cause of action is given; that the complaint does not allege the presentation of any such claim to the supervisor of the defendant town or to any one, but, on the other hand, shows the presentation of a claim by the administratrix appointed by the Massachusetts court long before the issue of such ancillary letters, and that such notice of claim is void and wholly ineffectual. The defendant also claims that, as the cause of action could not accrue until the presentation of a claim by the ancillary administratrix to whom alone the right of action is given, and she could not present same before her appointment, and no suit could be commenced until 15 days after the presentation of a legal statement or claim by the proper person, no cause of action is stated and no cause of action has accrued.

The statute in force at the time Dodge was killed provided (Highway Law, c. 568, Sec. 16, Laws 1890) as follows:

'Every town shall be liable for all damages to person or property, sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town. No action shall be maintained against any town to recover such damages, unless a verified statement of the cause of action shall have been presented to the supervisor of the town, within six months after the cause of action accrued; and no such action shall be commenced until fifteen days after the service of such statement.'

This statute required the presentation of the claim 'within six months after the cause of action accrued. ' I think the cause of action 'accrued' when Dodge was killed and his property was damaged. It cannot be that a party injured by such negligence may wait 10 or 20 years before filing the claim. I think the purpose of the statute was to give speedy information to the town of the accident, injury and consequent damage and intention to make a...