Tjepkema v. Kenney

31 A.D.2d 908, 298 N.Y.S.2d 175, 1969 N.Y. App. Div. LEXIS 4381

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 1969
• Status: Published

Opinion

Order, entered March 19, 1968, unanimously modified, on the law, .to strike defendant’s second and .third affirmative defenses and as so modified, affirmed, without costs and without disbursements. In this wrongful death action, brought against a Missouri resident, in rem jurisdiction was obtained over defendant by attachment of his insurance policy under the rule of Seider v. Roth (17 N Y 2d 111). Such in rem jurisdiction may not he converted to in personam jurisdiction even though defendant proceeds with the defense on the merits. (Simpson v. Loehmcmn, 21 N Y 2d 990.) Accordingly, that part of plaintiff’s motion praying that defendant’s appearance be deemed in personam was properly denied. The $25,000 limitation of damages contained in the Missouri wrongful death statute should not, however, be applied to limit a recovery in the action here although the automobile accident occurred in Missouri and the defendant is a resident of that state. The plaintiff’s 'intestate was a resident of New York, the estate is being administered here and the plaintiff (widow and administratrix) and other distributees (children) are residents here. Under these circumstances, the amount recoverable in this action is not subject to the Missouri statutory limitation. (Kilberg v. Northeast Airlines, 9 N Y 2d 34, 39'-40.) Consequently, the defendant’s second affirmative defense should be stricken. The third affirmative defense should also be stricken since it is clear from the record on appeal that the statutory right to maintain a wrongful death action exists in Missouri as well as in New York. Concur — Eager, J. P., McGivern, Markewich and Nunez, JJ.