McCarty v. New York, L.E. & W.R. Co.

• Decision Date: 02 July 1894
• Citation: 62 F. 437
• Parties: McCARTY v. NEW YORK, L.E. & W.R. CO.
• Court: U.S. District Court — Southern District of New York

62 F. 437

McCARTY v. NEW YORK, L.E. & W.R. CO.

United States Circuit Court, S.D. New York.

July 2, 1894

A. G Vanderpoel, for plaintiff.

F. B Jennings, for defendant.

WHEELER District Judge.

The plaintiff is a citizen of New Jersey, and, as administratrix appointed there, the personal representative of Michael McCarty, a citizen of New Jersey, whose death is alleged to have been caused in New Jersey by the wrongful act of the defendant, a corporation, and, as such corporation, a citizen, of New York. The action is given to the personal representative by a statute of New Jersey which provides that in it 'the jury may give such damages as they shall deem fair and just with reference to the pecuniary injury resulting from such death of the wife and next of kin,' and that 'the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin ' Revision, p. 294, Sec. 2. The defendant, by demurrer, raises the question whether the plaintiff can, on the right acquired by being appointed administratrix in New Jersey, maintain this action in this court out of New Jersey. This right of recovery did not arise in the life of the intestate, and could not ever accrue to him; the recovery is not for anything that ever was any part of his estate; the amount recovered, if any, will belong to the widow and next of kin, and can never be any part of the assets of the estate. The words 'personal representative,' in the statute, mean the administrator. Dennick v. Railroad Co., 103 U.S. 11.

The administration of estates is strictly local, but this suit is not any part of such administration. The plaintiff, by becoming administratrix, became the person to whom the right of action was given. The administration merely designated the person; the statute gives the right of recovery. A mortgage of land in New York authorized the mortgagee, of Vermont, his executors, administrators, or assigns, to sell; a sale by any executor in Vermont was good, because the letters there merely designated the person to execute the power. Doolittle v. Lewis, 7 Johns.Ch. 45. An administrator in another jurisdiction would have the right to sue there under this statute, when there was no administrator in New Jersey. Dennick v. Railroad Co., supra. But this does not show that an administrator in New Jersey, who had acquired the right of recovery, might not sue elsewhere. In that case, Mr. Justice Miller, in...