J.B. & J.M. Cornell Co. v. Ward
| Decision Date | 16 February 1909 |
| Docket Number | 191. |
| Citation | 168 F. 51 |
| Court | U.S. Court of Appeals — Second Circuit |
| Parties | J. B. & J. M. CORNELL CO., Limited, et al. v. WARD. |
Lemuel Skidmore, for plaintiff in error J. B. & J. M. CorneAT Rose & Putzel (Benj. G. Paskus and Sydney Bernheim, of counsel), for plaintiffs in error Boehm and Coon.
I. Henry Harris, for defendant in error.
Before LACOMBE, WARD, and NOYES, Circuit Judges.
The accident occurred in the state of New York, the statutes of which state provide that the executor or administrator 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 death was caused. The damages recovered do not constitute any part of the decedent's estate. They are exclusively for the benefit of such husband or wife or next of kin. Code Civ. Proc. N.Y. Secs. 1902, 1903. There is a similar statute in New Jersey. The deceased was a resident of Newark, N.J., and plaintiff was appointed administrator by the surrogate's court in that state. At the time of bringing suit he had not taken out ancillary letters in New York, and no statute of that state gives a foreign administrator, who has not received such an appointment, any right to sue in its courts. It is well settled that an administrator appointed in one state cannot as such maintain an action in another state, which has not either by the issue of ancillary letters or by some special provision of statute given him authority so to sue. Noonan v. Bradley, 9 Wall. 394, 19 L.Ed. 757; Dennick v. Central Railway Co., 103 U.S. 11, 26 L.Ed. 439. The objection was duly raised on the trial, and exception was reserved. The objection is fatal, and the judgment must be reversed. Fortunately this error will not deprive the plaintiff of any substantial right. It appears that subsequent to the trial he has taken out ancillary letters, and the Circuit Court has power to allow amendment which will enable him to prosecute the suit as such administrator. Van Doren v. Pennsylvania R.R., 93 F. 260, 35 C.C.A. 282; Hodges v. Kimball, 91 F. 845, 34 C.C.A. 103.
The judgment is reversed.
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Whitley v. Spokane & Inland Railway Co.
... ... Southern Ry. Co., 146 ... N.C. 345, 59 S.E. 879; J. B. & J. M. Cornell Co. v ... Ward, 168 F. 51, 93 C. C. A. 473; Dodge v. Town of ... ...
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Richter v. East St. Louis & S. Ry. Co.
...of the necessity of conformity of parties to state rule. Maysville, etc., Co. v. Marvin (C. C. A.) 59 F. 91; J. B. & J. M. Cornell Co. v. Ward (C. C. A.) 168 F. 51. In the case of New York Evening Post v. Chaloner, supra, it is said: "It must be admitted, we think, that the question whether......
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Gulf, M. & N. R. Co. v. Wood
... ... Noonan ... v. Bradley, 9 Wall, 394, 19 L.Ed. 757; Cornell Company v ... Ward, 168 F. 51; Dodge v. Town of North Hudson, ... 177 ... ...
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Cooper v. American Airlines
...L.R.A.1918D, 666; cf. 85 A.L.R. 1250, 1251. 7 Accordingly, we disregard Diatel v. Gleason, D.C., 22 F.Supp. 355, and J. B. & J. M. Cornell Co. v. Ward, 2 Cir., 168 F. 51, as those cases were decided in accordance with "general law" before the adoption of Rule 17(b) and the decision of Erie ......