Wikoff v. Hirschel

Decision Date05 January 1932
Citation258 N.Y. 28,179 N.E. 249
CourtNew York Court of Appeals Court of Appeals


Action by Emily Wikoff, as administratrix ad prosequendum and as general administratrix of the goods, chattels, and credits of John H. Wikoff, deceased, against Joseph Hirschel. From an order of the Appellate Division (232 App. Div. 193, 249 N. Y. S. 690), affirming an order which denied defendant's motion to dismiss the complaint, defendant, by permission, appeals, and the Appellate Division certified the question: ‘Does the complaint herein state facts sufficient to constitute a cause of action?'

Affirmed, and question certified answered.

Appeal from Supreme Court, Appellate Division, First department.

E. J. Dimock and Glen W. Watkins, both of New York City, for appellant.

Morris A. Wainger and John C. Robinson, both of New York City, for respondent.


The action is brought to recover damages for the defendant's negligence in causing the death of John H. Wikoff in Monmouth county, N. J.

A statute of New Jersey, enacted in 1848 and amended from time to time, established a cause of action in such circumstances, the suit to be brought in the name of the personal representatives, and the recovery to be for the exclusive benefit of widow, husband, and next of kin in the proportion provided by law for the distribution of personal property upon intestate succession.

A supplemental statute, enacted in 1917 (Laws of New Jersey, 1917, c. 180, P. L. p. 531 [Comp. St. Supp. § 55-10]), provides that every such action shall be brought in the name of an administrator ad prosequendum, who shall have no authority to receive payment of the judgment, but that payment shall be made only to a general administrator ‘who has given bond as required by law and who has been appointed on a petition which recites the amount to be so paid in settlement or in satisfaction of such judgment, or to one who * * * has filed with the tribunal appointing him, a supplemental bond with two able sureties.'

On the death of John H. Wikoff, the plaintiff was appointed administratrix ad prosequendum and also general administratrix by the surrogate of Monmouth county, N. J., and qualified in each capacity. The question is whether the cause of action existing under the statute of New Jersey is enforceable in New York.

Enforceable it plainly is, unless provisions in the statute of New Jersey are at war with our public policy (Loucks v. Standard Oil Co. of New York, 224 N. Y. 99, 110,120 N. E. 198), or unless the remedies prescribed thereby are incapable of adaptation to the forms of our procedure (Loucks v. Standard Oil Co. of New York, supra, 224 N. Y. 99, at page 113,120 N. E. 198;Slater v. Mexican Nat. R. R. Co., 194 U. S. 120, 24 S. Ct. 581, 48 L. Ed. 900).

The defendant does not urge that the public policy of New Jersey is different from ours. What is urged is merely this, that there is lacking in this state the procedural machinery whereby the statute can be made effective. If judgment shall be recovered in the name of the administratrix ad prosequendum and the general administratrix appointed in New Jersey, there can be no collection of the judgment till the general administratrix shall have filed a supplemental bond in the state of her appointment. The argument for the defendant is that a judgment, not susceptible of collection at the hands of the plaintiff who recovers it, is unknown to our law.

The fact is, however, that it is not unknown at all. The law of New York permits the grant of limited letters whereby an executor or administrator receives authority to sue, but is restrained from collecting without giving a sufficient bond. Surrogate's Court Act, §§ 89, 122. There will be no shock to our procedural forms in giving effect to like restrictions established in another state. Cf. Public Service Electric Co. v. Post (C. C. A.) 257 F. 933;Wilson v. Dairymen's League Co-operative Ass'n, 105 N. J. Law, 188, 191, 143 A. 454. All that there will be need to do will be to stay the enforcement of the judgment till the plaintiff shall have...

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10 cases
  • Meehan v. Central Railroad Company of New Jersey
    • United States
    • U.S. District Court — Southern District of New York
    • January 12, 1960
    ...in New York. The general rule is stated to be that a foreign administrator is without standing in the New York courts. Wikoff v. Hirschel, 1932, 258 N. Y. 28, 179 N.E. 249. The court in the Wikoff case stated the problem as follows: "The cases are in conflict upon the question whether, apar......
  • Collins v. American Automobile Insurance Company
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 14, 1956
    ...of the party who has it, and not to establish a cause of action under our statute which never in fact arose." See also Wikoff v. Hirschel, 258 N.Y. 28, 179 N.E. 249; Baldwin v. Powell, 294 N.Y. 130, 61 N.E.2d Of course New York adheres to the general rule that the law of the forum determine......
  • Kilberg v. Northeast Airlines, Inc.
    • United States
    • New York Court of Appeals Court of Appeals
    • January 12, 1961
    ...statute' unenforcible here because contrary to our public policy (see Chief Judge Cardozo's reference to Loucks in Wikoff v. Hirschel, 258 N.Y. 28, 30, 179 N.E. 249, 250). As to conflict of law rules it is of course settled that the law of the forum is usually in control as to procedures in......
  • Cooper v. American Airlines
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 25, 1945
    ...had it been decided whether an exception to the general rule should be made on such facts; the latest case cited was Wikoff v. Hirschel, 258 N.Y. 28, 179 N.E. 249, where the question was expressly left In the later case of Baldwin v. Powell, 267 App.Div. 640, 47 N.Y.S.2d 665, a Connecticut ......
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