Norton v. Erie Railroad

163 A.D. 468, 148 N.Y.S. 771, 1914 N.Y. App. Div. LEXIS 6978

Opinion

Kruse, P. J.:

The plaintiff seeks to have included in the judgment interest upon the verdict from the time of the death of the plaintiff’s intestate, as is provided by section 1904 of the Code of Civil Procedure. I think that section has no application to this case, for the reason that the action is brought under the Federal Employers’ Liability Act, and the verdict rests solely upon the claim arising under that act. The Federal statute is paramount and exclusive (35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143; U. S. Comp. Stat. Supp. 1911, pp. 1322, 1324; Mondou v. N. Y., N. H. & H. R. R. Co., 223 U. S. 1; Taylor v. Taylor, 232 id. 363, revg. sub nom. Matter of Taylor, 204 N. Y. 135), and the defendant’s liability may not be extended by the provisions of our statute. No provision is made in the Federal act for adding such interest to the verdict, and I think the provisions of our statute may not be invoked for that purpose.

The order should, therefore, be affirmed, with ten dollars costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.