In re Taylor

• Decision Date: 16 January 1912
• Citation: 97 N.E. 502,204 N.Y. 135
• Parties: In re TAYLOR.
• Court: New York Court of Appeals Court of Appeals

204 N.Y. 135

97 N.E. 502

In re TAYLOR.

Court of Appeals of New York.

Jan. 16, 1912.

Appeal from Supreme Court, Appellate Division, Second Department.

Application by Sextus E. Taylor to compel Susan J. Taylor, administratrix, to turn over moneys to applicant. From an order of the Appellate Division (144 App. Div. 634,129 N. Y. Supp. 378) reversing an order at Special Term, which denied the application, administratrix appeals. Order appealed from affirmed, and that of the Special Term reversed.

See, also, 130 N. Y. Supp. 1132.

Frank Lybolt, for appellant.

Edward Frank Glover, for respondent.

HAIGHT, J.

[1] Howard E. Taylor was a locomotive fireman employed by the Erie Railroad Company, and was engaged in taking a trip from Port Jervis, in this state, to Jersey City, in the state of New Jersey, when an accident occurred in this state through the wrongful act, negligence, or default of the Erie Railroad Company which resulted in his death. He left him surviving a widow and a father. He had no children or other next of kin. The widow, Susan J. Taylor, was appointed administratrix by the Surrogate's Court of Orange county, where they resided, and, as such administratrix, brought an action in the Supreme Court of this state against the railroad company to recover damages for the death of her husband. The defendant in that action made a written offer of judgment for the sum of $5,000. The plaintiff applied to the Surrogate's Court for its approval of the offer of compromise, and such approval was granted, and judgment was entered against the defendant for that amount, which sum was paid to her by the defendant company. The decedent's father thereuponmoved at Special Term in the Supreme Court for an order directing the plaintiff in that action to pay over to him one-half of the net proceeds of the judgment, in accordance with our statute of distribution. This motion was denied. The decedent's father appealed from the order to the Appellate Division, which court reversed the order of the Special Term, and granted the motion. The question now presented to this court is as to whether the distribution of the fund should be made under the federal statute or under the provisions of our Code of Civil Procedure. For many years the statute of this state has given a right of action to the executors or administrators of a decedent who has left him or her surviving a husband, wife or next of kin, to recover damages for the benefit of such husband. wife, or next of kin for a wrongful act, neglect, or default of any person or corporation by which the decedent's death was caused. Such damages, when recovered, were exclusively for the benefit of the decedent's husband or wife and next of kin, and must be distributed as if they were unbequeathed assets left in the hands of the executor and administrator after payment of all debts and expenses of administration. Code of Civil Procedure, §§ 1902, 1903. Under the provisions of our Constitution of 1894 (article 1, § 18), it is provided that ‘the right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.’ It consequently follows that, under the provisions of our statute, the widow of the decedent was entitled to one half of the recovery and the father the other half; he being the only next of kin. Under the act of Congress relating to the liability of common carriers by railroads to their employés, approved April 22, 1908, as amended April 5, 1910, it was provided ‘that any right of action given by this act to a person suffering injury shall survive to his or her personal representative, for the benefit of the survivingwidow or husband and children of such employé, and if none, then of such employé's parents, and if none, then of the next of kin dependent upon such employé, but in such cases there shall be only one recovery for the same injury.’ Under the provisions of this statute the widow of the decedent would take the whole of the recovery and the father nothing. We thus have presented a conflict between the federal and the state statutes as to the distribution that should be made of the fund, and the question is as to which shall prevail.

In adopting the federal Constitution the state delegated to Congress the power to regulate interstate commerce, and it may be conceded that with that power it may enact regulations for the control of common carriers and their employés with reference to hours of labor and safety appliances, and give a right of action to employés suffering injury through the negligence of such carriers. Employer's Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297. But the power to regulats interstate commerce must end somewhere, and, so far as employés of common carriers engaged in interstate commerce are concerned, it appears to us that it must end with the death of the employé. When that event occurs, all of the statutes with reference to safety appliances, hours of labor, or rights of action for injuries received become of no effect, and his estate, whatever it may be, passes to legatees and devisees, or to his widow, his heirs at law, and next of kin.

In this case the decedent died intestate. As we have seen, he left him surviving a widow and a father his only next of kin. Neither of these persons were engaged in interstate commerce or subject to any of the provisions of the statute enacted with reference to its regulation. They are residents of this state, subject to its laws and jurisdiction and possessing the rights given by its Constitution and statutes. As widow and next of kin of the decedent they are deemed to have sustained pecuniary loss by his death, and such death being caused through the negligence of the Erie Railroad Company corporation, the administrator of the decedent is given the right of action in their behalf to recover the damages which they have sustained. This, it appears to me, is a right of property which Congress had no power to take from them. Our statute makes it the same as an unbequeathed asset of the estate of the decedent, which is recoverable by the administrator exclusively for their benefit. If Congress can go beyond the death of the employé and distribute the funds recovered for causing such death, we see no reason why it may not also unllify our statute providing for the descent of real estate, and also our statute providing for the distribution of his personal estate, upon the theory that his real and personal estate was acquired and paid for out of his earnings as an employé of a transportation company engaged in interstate commerce. To our minds the states never intended or contemplated the delegation of such power to Congress by the provisions of the Constitution heretofore referred to. We consequently are of the opinion that the act of Congress, in so far as it attempts to distribute the funds, is invalid and unauthorized. Whether the act should be limited in its application to territories and states in which no right of action is given to the widow and next of kin of persons whose death is caused through the fault of another is not now before us, and is not considered.

[2] Our chief judge appears to entertain the view that our own statute remains in force, and that the next of kin may still maintain another action to recover the loss which has been sustained. We are unable to concur with his view upon this question. The right of action is not given to the widow and next of kin. It is given to the administrator of the decedent for their benefit. The Legislature clearly contemplated that but one action should be brought for the benefit of all the persons interested, and that that action should be by the administrator.In this case the action was prosecuted by the administratrix appointed by the Surrogate's Court in this state. The complaint set forth a good cause of action under our statute. The fact that it alleged that it was brought under the act of Congress known as the ‘Employer's Liability Act’ may be waived by the parties, and does not affect the question we have under consideration. True, an offer of compromise was made by the defendant, but this was submitted to the court and its acceptance approved and judgment was entered thereon. If an action can now be maintained for the benefit of the father, it must be maintained by the administratrix, and we apprehend the action would not progress far before it would be met by the plea of a for mer judgment in bar. Neither our own statute nor the federal statute ever contemplated more than one action. The federal statute expressly provides ‘that there shall be only one recovery for the same injury,’ and it, like our own statute, gives the right of action to the executor or administrator of the decedent for the benefit of those which it specifies; the purpose being in both statutes to allow only one recovery for the same injury.

For a more elaborate discussion of the main question in the case, we refer to the learned opinion of Carr, J., in the Appellate Division. We think that the order of the Appellate Division should be affirmed, with costs.

CULLEN, C. J. (dissenting).

I concur in the reversal of the order appealed from, but solely on the ground that the respondent has no interest in the fund in dispute. I am not prepared to admit the validity of the act of Congress so far as it authorizes a recovery by the personal representatives of an employé engaged in interstate commerce for damages for his death occasioned by the fault of the employer, the recovery to be apportioned among certain relatives of the deceased or next of kin dependent upon him. I do not think that proposition is involved in the decision of the Supreme Court of the United States in the Employers' Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297. Liability to the employé himself for injuries causing his death and liability to his next of...