Pietraroia v. New Jersey & H.R. Ry. & Ferry Co.

• Decision Date: 08 February 1910
• Citation: 197 N.Y. 434,91 N.E. 120
• Parties: PIETRAROIA v. NEW JERSEY & H. R. RY. & FERRY CO.
• Court: New York Court of Appeals Court of Appeals

197 N.Y. 434

91 N.E. 120

PIETRAROIA

v.NEW JERSEY & H. R. RY. & FERRY CO.

Court of Appeals of New York.

Feb. 8, 1910.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Pietro Pietraroia, as administrator, etc., against the New Jersey & Hudson River Railway & Ferry Company. A judgment for plaintiff was reversed (131 App. Div. 829,116 N. Y. Supp. 249), and he appeals. Affirmed.

See, also, 133 App. Div. 899,118 N. Y. Supp. 1136.

This action was brought to recover damages for the death of the plaintiff's intestate, which the complaint alleges to have been caused by the negligence of the defendant's servants. The deceased was struck by a car of the defendant, while crossing one of its tracks, in the state of New Jersey, in order to catch another car. The defendant was a corporation organized under the laws of the state of New Jersey and operated an electric railway within that state. The deceased and her husband, with their children, were residents of the same state. Some time after the accident, the plaintiff, a resident of this state, filed a petition in the Surrogate's Court of the county of New York, setting forth that he was the father of the deceased; that she had left no will; and that she died possessed of personal property in the city of New York, which consisted in the sum of $250, on deposit with a savings bank. Upon this petition, and on the following day, letters of administration were granted to the plaintiff, and, then, on the day following their granting, this action was commenced. The defendant, by answer, denied the material averments of the complaint and alleged that the court had no jurisdiction over the subject-matter of the action. At the trial, in addition to facts relating to the occurrence of the accident, the plaintiff gave evidence concerning the property, alleged to have been left by the deceased in the county of New York. From the evidence it appeared that, at the time of the death, there was on deposit in the savings bank the sum of $500, which was entered as a credit upon an account entitled ‘Carmela Galeazza and husband, Francisco, or either.’ On the date of plaintiff's application for letters of administration, the husband withdrew from the savings bank $250 of the moneys on deposit and then gave over the bank book to a surety company, to indemnify it in becoming surety for plaintiff on his bond as administrator. It was proved that the New Jersey statute authorized such an action as this and was similar in its provisions to the New York statute. The plaintiff recovered a verdict, and defendant's motion under section 999 of the Code of Civil Procedure, to set aside the verdict on all the grounds therein stated, except for insufficient damages, was denied. On appeal, the Appellate Division, in the First Department, reversed the judgment on the verdict and the order, and thereupon ordered ‘that the court refuse to exercise jurisdiction in this action, and the complaint is dismissed.’

Herbert C. Smyth, for appellant.

Clarence E. Thornall, for respondent.

GRAY, J. (after stating the facts as above).

The Appellate Division has exercised its discretion in refusing to entertain jurisdiction of the plaintiff's action, by refusing a new trial of the action and by dismissing his complaint, and it cannot well be said that grounds were lacking for its action. That it possessed this discretionary power is not to be doubted. When created, its jurisdiction was to be that which was exercised by the former ‘Supreme Court at its General Terms,’ and it remains a part of the Supreme Court. Code Civ. Proc. § 220. Its powers of review comprehend the right to review an exercise of discretion by the inferior courts, and, equally, the right to exercise its own discretion, independently, when the facts or circumstances of the case are such as to justify it. If, in the present case, the action had been between nonresidents of this state, there could be no question as to the right of the court below to take the action it did. In such cases the discretion has been exercised both in entertaining, and in refusing to entertain, jurisdiction; the exercise depending upon the special circumstances of the particular case. See Collard v. Beach, 81 App. Div. 582,81 N. Y. Supp. 619;De Witt v. Buchanan, 54 Barb. 31;Gardner v. Thomas, 14 Johns. 134, 7 Am. Dec. 445. In Burdick v. Freeman, 120 N. Y. 420, 24 N. E. 949, the existence of this discretionary power was distinctly recognized. What that case decided was that where the Supreme Court, in the exercise of its discretion, had entertained jurisdiction of an action between nonresidents,...