Friedman v. Greenberg, 95.

• Decision Date: 28 April 1933
• Docket Number: No. 95.,95.
• Citation: 166 A. 119
• Parties: FRIEDMAN v. GREENBERG.
• Court: New Jersey Supreme Court

166 A. 119

FRIEDMAN

v. GREENBERG.

No. 95.

Court of Errors and Appeals of New Jersey.

April 28, 1933.

Syllabus by the Court.

1. At common law no action could be maintained against the administrator of a decedent for a tort which was committed by decedent and as a result of which the tort-feasor himself died.

2. In an action in tort for negligence, the question of liability is governed by the law of the state where the accident occurred; and, where it occurred in a sister state, the common law is presumed to prevail in that state until a statute changing it is shown.

3. A cause of action, which by the rules of the common law is extinguished by the death of the tort-feasor, is by such death fully discharged unless the cause of action survives by force of some statute law of the state where the cause of action accrued; and, when such cause of action does not so survive, it cannot be maintained in New Jersey when begun after the death of the tort-feasor.

4. The pleadings and stipulation examined, and held to justify a judgment for the defendant in a tort action for negligence begun in New Jersey after the death of the tort-feasor against his administrator, and growing out of an accident occurring in New York which resulted in the death of the defendant's intestate.

Appeal from Supreme Court.

Action by Blanche Friedman against Irving Greenberg, administrator of the estate of Charles Friedman, deceased. From an adverse judgment, plaintiff appeals.

Affirmed.

Feder & Rinzler, of Passaic, for appellant.

McCarter & English, of Newark (Herbert R. Baer and Augustus C. Studer, Jr., both of Newark, of counsel), for respondent.

TRENCHARD, Justice.

The plaintiff below appeals from a judgment entered in favor of the defendant in the Supreme Court at the Passaic circuit on defendant's motion before trial in an action by the plaintiff, who is the daughter of Charles Friedman, deceased, against the administrator of her father's estate, after her father's death.

The motion was made pursuant to Rule 26, Schedule A, Practice Act 1912, P. L. p. 389 (now Rule 40 of Supreme Court Rules) on the pleadings (to which was added a stipulation) upon the ground that no cause of action was disclosed against the defendant.

Briefly stated, the complaint charged that plaintiff was riding as an invitee with her father in his automobile in the state of New York; that by reason of her father's negligent driving an accident occurred which resulted in her injury and her father's death, and plaintiff claimed damages from her father's estate on account of her injuries. The answer of the defendant was a general denial. The stipulation entered into by the plaintiff and defendant was that "under the law of the State of New York in an action ex delicto as is involved in this suit, the common law applies, to the effect that the cause of action will not survive the death of either party, and in the State of New York, where the accident occurred, this plaintiff would have no cause of action against the defendant herein, the administrator of the deceased tort feasor."

As we see it, the question now before this court is whether the court erred in entering judgment for the defendant on the pleadings and stipulation before it. That, of course, turns upon the question whether the plaintiff has a cause of action against the defendant administrator for a tort which was committed by defendant's intestate in the state of New York, as a result of which the tort feasor himself died.

We believe no such cause of action was disclosed.

It is clear that by the rules of the common law no such suit could be maintained. Ten Eyck v. Runk, 31 N. J. Law, 428.

It is true that in New Jersey we have a remedial statute permitting the survivorship of tort actions against the executor or administrator of the tort-feasor. 2 Comp. St. 1910, p. 2260, § 5; Tichonor v. Hayes, 41 N. J. Law, 193, 32 Am. Rep. 186; Hackensack Trust Co. v. Vanden Berg, 88 N. J. Law, 518, 97 A. 148. However, as we have seen, it was stipulated that under the law of the state of New York, where this accident occurred, there is no such statute; that under the law of that state the common-law rule applies, and that the plaintiff herein would have had no cause of action against the defendant.

Now it has been repeatedly decided that where, as here, the tort occurs in New York, even though the action is brought in a state which has a survival statute, the law of New York governs, and the action does not survive and cannot be maintained in a state having a survival statute, such as New Jersey has, when begun after the death of the tort-feasor.

It is clear that the accident having occurred in New York state, the question of liability is governed by the law of that state. Harber v. Graham, 105 N. J. Law, 213, 143 A. 340, 61 A. L. R. 1232.

Ignoring for the moment the stipulation in the present case, the rule is that, where there is no proof of a foreign statute changing the common law, it will be presumed that the common law prevails in the sister state. Moreover, in Rankin v. Central R. Co., 77 N. J. Law, 175, 71 A. 55, 56, it...