Masci v. Young, No. 108.

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: DONGES, J.
• Citation: 162 A. 623
• Parties: MASCI v. YOUNG.
• Docket Number: No. 108.
• Decision Date: 17 October 1932

162 A. 623

MASCI
v.
YOUNG.

No. 108.

Court of Errors and Appeals of New Jersey.

Oct. 17, 1932.

162 A. 624

Syllabus by the Court.

In a suit wherein the cause of action arose in another state, the courts of this state will apply the law of the foreign state applicable thereto when it is not penal in nature, when it is not contrary to the policy of the law of this state, and when the local judicial procedure is adequate to enforce it.

Appeal from Supreme Court.

Action by Anthony Masci against Charles Young. From a judgment in favor of the plaintiff (157 A. 82, 9 N. J. Misc. 1137), the defendant appeals.

Affirmed.

Kellogg & Chance, of Jersey City, for appellant.

Aaron L. Simon, of Passaic, for respondent.

DONGES, J.

This appeal brings up a judgment of the Supreme Court, in favor of the plaintiff and against the defendant, entered on postea on verdict at the Passaic circuit after a trial before Judge Mackay and a jury.

The defendant, Young, lent his automobile to one Balbino, who took it to the city of New York, and, whilst operating it there, collided with plaintiff and injured him, for which injuries the judgment was obtained.

The defendant, Young, was a resident of the state of New Jersey, and was in this state at the time of the bailment to Balbino and, likewise, at the time of the collision complained of.

The statute of New York invoked to impose liability upon the defendant provides: "Every owner of a motor vehicle or motor cycle operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle or motor cycle in the business of such owner or otherwise by any person legally using or operating the same with the permission, express or implied, of such owner." Vehicle and Traffic Law (Consol. Laws, c. 71), § 59.

This statute was applied at the trial and it is this action of the trial judge that is assigned as error. The question is presented on motions to the judge to control the case, as well as by exceptions to the charge and the refusal to charge.

This is a transitory action. In Ackerson v. Erie Ry. Co., 31 N. J. Law, 309, it was said: "Transitory actions are such personal actions as seek only the recovery of money or personal chattels, whether they sound in tort or contract. They are universally founded on the supposed violation of rights, which, in contemplation of law, have no locality."

In Dennick v. Central Railroad Company, 103 U. S. 11, 18, 26 L. Ed. 439, it was said: "Wherever, by either the common law or the statute law of a State, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters, and can obtain jurisdiction of the parties."

In such actions the law of the state in which the cause of action arose will by comity be applied, if comity should be extended. Harber v. Graham, 105 N. J. Law, 213, 143 A. 340, 61 A. L. R. 1232.

It is not denied that the provision quoted is the law of the state of New York. The constitutionality of the act has been sustained by the courts of that state. Downing v. City of New York, 219 App. Div. 444, 220 N. Y. S. 76; Dawley v. McKibbin, 245 N. Y. 557, 157 N. E. 856.

It seems to be the settled law that certain classes of foreign, created actions will not be enforced, namely, those which are penal, those which are contrary to the policy of the law of the state in which the suit is brought, and those for whose enforcement the local judicial procedure is inadequate.

Appellant argues that the statute in question imposes a penalty. But this is obviously not so. It does not impose a penalty, it merely establishes a right. It visits only lawful damages for violation of a right. Kennealy v. Leary, 67 N. J. Law, 435, ...