Pensabene v. F. & J. Auditore Co.

155 A.D. 368, 140 N.Y.S. 266, 1913 N.Y. App. Div. LEXIS 5085

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 1913
• Status: Published

Opinions

Carr, J.:

It is plain from a reading of subdivision 9 of section 2 of the New Jersey statute (Laws of 1911, chap. 95) that its provisions for “Elective Compensation” apply, by force of said statute, only where the contract of hiring was made in the State of New Jersey. The complaint in this action fails to set up a hiring made in that State. I am inclined to the view that this failure of allegation was deliberate. Be that as it may, the complaint is defective so far as it is based upon the foreign statute. Beyond this point, I do not concur in the opinion of Woodward, J., for the further discussion therein contained is purely obiter. In view of the fact that this case was submitted to this court without' any brief from the respondent and practically with but little oral argument from her counsel, I think it the better policy to refrain from any expression of views which, as this case stands before us, can be at most but personal views and not the declaration of a principle of law put forth necessarily to decide the actual controversy.

The order is reversed, with ten dollars costs and disbursements, and the motion to sustain the demurrer is granted, with ten dollars costs, with leave to the plaintiff to serve an amended complaint within twenty days on payment of costs as aforesaid.

Jerks, P. J., Burr and Thomas, JJ., concurred; Woodward, J., concurred in separate opinion.