In re Uravic's Estate

• Citation: 142 Misc. 775,255 N.Y.S. 638
• Parties: In the Matter of the Estate of ANTON URAVIC, Deceased.
• Decision Date: 24 February 1932
• Court: New York Surrogate Court

142 Misc. 775

255 N.Y.S. 638

In the Matter of the Estate of ANTON URAVIC, Deceased.

Surrogate's Court, Kings County.

February 24, 1932

Petition by administratrix for accounting.

Proceed accordingly.

SYLLABUS

The payment to an attorney of a contingent fee of fifty per cent should be approved, where it appears that said attorney took the case after the dismissal of the complaint and the withdrawal of the attorney of record and a successor attorney; that the Court of Appeals had rendered a decision in another case which involved a legally identical state of facts and in effect determined that no recovery could be had and that said attorney obtained a recovery after carrying the case to the United States Supreme Court.

In an action by an administratrix to recover for the death of a stevedore, who, while in the employ of a domestic corporation and engaged in unloading a German vessel in New York harbor received injuries in consequence of the negligence of a fellow-servant, from which he died on the same day, any sums received as a result of the causes of action created by the Federal Employers' Liability Act (U. S. Code, tit. 45, §§ 51 et seq.), or the Jones Act (U. S. Code, tit. 46, § 688), must be distributed in accordance with the provisions of such acts and not in accordance with section 133 of the Decedent Estate Law.

Such distribution is to be made to the persons who are shown to have been pecuniarily damaged by the death of the decedent and in proportion to their demonstrated damage.

Prima facie, a widow is entitled to a recovery for her probable life or that of her husband based on mortality tables, whichever is shorter; and infant children are likewise entitled for the periods of their respective minorities, but these presumptions may be rebutted by a showing of facts exonerating the decedent from his customary legal responsibility in this regard and demonstrating the non-existence both of such legal responsibility and of the probability of voluntary contribution.

An adult child or other normally non-dependent person is prima facie entitled to no recovery, but this presumption may be rebutted as to any person within the description of the statute by a showing of facts demonstrating the probability of pecuniary benefit by the decedent had he lived.

The damage occurred on the death of the deceased and losses and corresponding compensation are to be computed from that date.

Either a widow or minor child may be entitled to an award, in excess of its natural prima facie rights, by demonstrating the existence of conditions of illness or dependency, making it probable that the dependency upon the decedent and consequent loss as a result of his death were beyond those in the usual case.

COUNSEL

Conrad Saxe Keyes, special guardian.

Paul C. Matthews, for the petitioner.

WINGATE S.

The institution of this proceeding for the judicial s ettlement of the accounts of the administratrix marks the rising of the curtain on the final act of a legal drama which is of more than passing historical interest.

Anton Uravic was a stevedore in the employ of Jarka Co., Inc., a domestic corporation. On July 13, 1926, he was engaged in unloading a German vessel in New York harbor and received injuries in consequence of the negligence of a fellow-servant from which he died on the same day. Limited letters of administration were granted by this court to the widow on October 28, 1926, for the purpose of enabling her to litigate her claims for a recovery by reason of his death.

This action for damages was tried in the Supreme Cour t of Kings county on March 30, 1927, and resulted in a dismissal of the complaint. The attorneys for the administratrix then informed her that they did not care to continue the case, as they deemed the chances of obtaining a reversal extremely remote. Another attorney was employed, but almost simultaneously with his engagement, the Court of Appeals rendered its decision in Resigno v. Jarka Co., Inc. (248 N.Y. 225), which involved a legally identical state of facts, and in effect determined that a longshoreman, employed as the intestate was, by an American employer on a foreign vessel in American waters, could not invoke the benefits of the Jones Act (U. S. Code, tit. 46, § 688) in a suit against the employer.

The result of this determination by the unanimous judgment of the court in two extended and carefully considered opinions by Chief Judge CARDOZO and Judge CRANE, covering sixteen printed pages in the official reports, was to render it certain that no different result could be anticipated short of the United States Supreme Court. The newly-retained attorney thereupon promptly retired from the case.

The administratrix had the good fortune, however, to interest Paul C. Matthews in undertaking the prosecution of her claim. As might be supposed in the case of a person in her situation, she was utterly without the means to finance so involved a litigation, and Mr. Matthews undertook the task on a contingency agreement of fifty per cent.

The result of his efforts is legal history. The dismissal of the complaint at Trial Term was unanimously affirmed in the Appellate Division (225 A.D. 892) and in the Court of Appeals (252 N.Y. 530) but was unanimously reversed by the United States Supreme Court (282 U.S. 234), Mr. Justice HOLMES writing for the court, and the case was remitted for trial. On the eve of the retrial, when all had been made ready, defendant settled for $15,000. The distribution of this fund is the subject-matter of the present proceeding.

Approval is asked of the fifty per cent contingency payment to Mr. Matthews. Under ordinary circumstances an agreement for such a large share in a recovery is viewed by this court with extreme suspicion. The circumstances here present are, however, far from ordinary, and the court not only grants such approval but feels that the action of this attorney in thus championing an apparently hopeless cause is worthy of the highest commendation. All parties are agreed on this disposition of this feature of the case.

The parties are also agreed that the distributable po rtion of the recovery is to be allocated among the next of kin of decedent in the proportions indicated by section 133 of the Decedent Estate Law of the State of New York (as added by Laws of 1920, chap. 919). To such thesis, however, the court is unable to adhere. In Matter of De Martino (142 Misc. 431) this court had occasion to consider a similar question and reached the conclusion that since the recovery in such a case is had by reason of the provisions of the Federal statute, the distribution of the resulting avails is likewise governed by that statute as interpreted by the United States Supreme Court in Gulf, Colorado & Santa Fe Ry. Co. v. McGinnis, (228 U.S. 173, 175, 176).

While some authority was there cited for the result then reached, the opinion of the court was directed more especially to theory and pure logic, owing to the fact that no directly controlling decisions of this State had been found on the subject.

The parties to this proceeding, however, challenge this result on authority, and it, therefore, becomes a matter of interest to examine the state of the decided cases on the subject.

The only adjudication cited for a different determination is Matter of Stone (173 N.C. 208), decided by the Supreme Court of North Carolina on March 28, 1917. The authority of that determination is apparently increased by the notation of present counsel that a writ of error in respect to that decision was dismissed by the United States Supreme Court in 245 United States, 638. A reference to the latter serves, however, to dispel the appearance of any controlling weight, since the per curiam opinion reads: 'Dismissed for want of jurisdiction upon the authority of § 237, Judicial Code,' and several cases cited. It is obvious, therefore, that the case was not decided by the United States Supreme Court on the merits, wherefore, the only authority of the adjudication is that of the Supreme Court of North Carolina itself.

In that case a sum in settlement was paid to the administratrix of a decedent who was engaged in interstate commerce at the time of his death. The holding of the court is four-square to the effect for which it is cited, reading (at p. 210): 'The Federal Employers' Liability Act declares who shall take in case of wrongful death, but leaves it as a matter of law how much and what proportion each shall take in its class, except when the State act requires that the appropriation must be made in the verdict, as in McGinnis v. R. R., 228 U.S. 173, under the Texas act. The Federal statut e makes no provision for the apportionment of the fund, and, therefore, the State statute controls. The source of the recovery is the United States statute, and that indicates only the different classes of the beneficiaries and the manner of ascertaining the amount due. But when the amount and class are ascertained, the sum paid or recovered must be distributed in that class according to the requirement of the State law. In this case, there being a widow and a child, the amount is to be divided between them according to our statute, two-thirds to the child and one-third to the widow. That matter is regulated by the State statute of distribution. R. R. v. White, 238 U.S. 507.'

Of course, this adjudication is a precedent in no wise binding upon this court, and is scarcely entitled to weight equal to the contrary determinations of Surrogate FEELEY in Matter of Barker (134 Misc. 833) and of Surrogate WHEELER in Matter of Gilbride (140 id. 797), although the latter are of course also not precedents controlling on this court.

Since however, the Supreme Court of North Carolina is an...