Wooden v. Western N.Y.&P.R. Co.

Decision Date10 March 1891
Citation26 N.E. 1050,126 N.Y. 10
PartiesWOODEN v. WESTERN N. Y. & P. R. CO.
CourtNew York Court of Appeals Court of Appeals


Appeal from superior court of Buffalo, general term.

John G. Milburn, for appellant.

Harlow C. Curtiss, for respondent.


This appeal is from an interlocutory judgment overruling a demurrer and determining that the complaint assailed stated a good cause of action. That pleading alleged that the plaintiff was and is a resident of this state, and the defendant a corporation created and existing under our laws. The contest thus is between a resident individual and a domestic corporation. The latter owned and operated a line of railroad extending beyond our boundaries into the adjoining state of Pennsylvania, and the complaint alleged that in that state the plaintiff's husband was killed by the negligence of the defendant company. The complaint further averred that the statutes of that state gave a right of action for the injury sustained by the widow and children; that the remedy could be enforced in the name of the former as plaintiff, but for her own benefit and that of the children; and that such statute was of similar import to that existing in our own jurisdiction. Judgment was thereupon demanded for damages in the sum of $20,000. The demurrer interposed raised two objections: First, that the statutes of the two states were not similar, but different; and, second, that the action could not be maintained here in the name of the widow, but only in that of an executor or administrator of the deceased; and the final result sought to be established was that the widow could not maintain an action in this state because that is contrary to our statute, and that the administratrix could not because that is contrary to the Pennsylvania statute; and so there is no remedy whatever in our jurisdiction.

Certain propositions essential to the inquiry before us have been explicitly determined in McDonald v. Mallory, 77 N. Y. 546, and need no other citation for their support. That case held that the liability of a person for his acts, whether wrongful or negligent, depends in general upon the law of the place in which the acts were committed; that actions for injuries to the person in another state are sustained here without proof of the lex loci, because they are permitted by the common law which is presumed to exist in the foreign state; that such presumption does not arise where the right of action depends upon a statute which confers it; and that in such case the action can only be maintained here by proof that the statutes of the state in which the injury occurred give the right of action, and are similar to our own. Upon the question of similarity we have also held that the two statutes need not be identical in their terms, or precisely alike, but it is enough if they are of similar import and character, founded upon the same principle, and possessing the same general attributes. Leonard v. Navigation Co., 84 N. Y. 53. It is quite evident that the two statutes are of similar import. They are founded upon the same principle, are aimed at the same evil, construct the same sort or kind of action, and give it for the benefit of the same class of individuals. In both the utter failure of redress at common law where the injury ended in death was the injustice for which a remedy was enacted; and in both the new action was given for the benefit of those who had suffered an injury as the consequence of the wrong. This fundamental agreement in the main and substantial characteristics of the two statutes is not affected by the differences of detail which the demurrer points out. The first is that by the lex loci the proper person to bring this action, and the only person who can maintain it, is the widow; while by our law the right of action is given to the executor or administrator. But it is...

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68 cases
  • Collins v. American Automobile Insurance Company
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 14, 1956
    ...bring an action for wrongful death, even though the law of the forum prescribed different plaintiffs. See Wooden v. Western N. Y. & P. R. Co., 126 N.Y. 10, 16, 26 N.E. 1050, 1051, 13 L.R. A. 458, wherein the court said: "But it must not be forgotten that the cause of action sued upon is the......
  • Kilberg v. Northeast Airlines, Inc.
    • United States
    • New York Court of Appeals Court of Appeals
    • January 12, 1961
    ...on public policy grounds to enforce one of its provisions as to damages. Actually, we have in Wooden v. Western N. Y. & Pa. R. Co., 126 N.Y. 10, 16-17, 26 N.E. 1050, 1051, 13 L.R.A. 458, a flat holding by our court that, in an action brought for causing a wrongful death in Pennsylvania, the......
  • King v. Hanson
    • United States
    • North Dakota Supreme Court
    • April 16, 1904
    ... ... enforced in any other jurisdiction. Debevoise v. Railroad ... Co., 98 N.Y. 377; Wooden v. Western N. Y. & R. R ... Co., 26 N.E. 1050; Kohl v. Railroad Co., 10 So ... 661; Carter ... ...
  • Crebbin v. Deloney
    • United States
    • Arkansas Supreme Court
    • June 14, 1902
    ...64 Ark. 39; 14 S.W. 1024; 87 Ga. 113; 1 Wall. 298; 96 U.S. 51. The rule as to transitory actions: 88 Va. 971; 68 Vt. 727; 145 U.S. 593; 126 N.Y. 10; 16 R. I. 83 Ky. 174; 113 Ind. 169. The rule that a state cannot enforce the criminal penalties of another applies to civil suits for penalties......
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