Vandeventer v. New York & New Haven Rail Road

27 Barb. 244, 1857 N.Y. App. Div. LEXIS 217

• Court: New York Supreme Court
• Decided: October 5, 1857
• Status: Published

Opinion

Peabody, J.

The objection made by the defendants seems to be entirely fatal to this case. The deceased was killed instantly, by the negligence of the defendants. At common law no action for damages would lie for such a killing. (Warley v. Cincinnati, Ham. and Dayton R. R. Co., 1 Handy’s Ohio Rep. 481. Ashby v. White, 2 Smith’s Lead. Cas. 131 ,note.) This accident, and the acts and omissions complained of, occurred in Connecticut; and whether an action will lie for acts done there depends on the l.aws of Connecticut. New York does not prescribe what may or may not be done in Connecticut ; nor does she decide what shall be the consequence of acts done there, and whether they be or be not actionable. What the laws of Connecticut are, on the subject, does not appear, either by the pleadings or evidence. They were neither pleaded nor proved, and we are not at liberty to speculate upon, or ascertain for ourselves, this, more than any other fact material and necessary to a recovery. This court cannot j udicially know them. In the .absence of all evidence on the subject, it can at most only intend that the common law prevails there ; and by that the plaintiff would have no right of action. A statute, to be sure, exists in this state which gives an action to the representatives of a person killed by the wrongful act or negligence of another, and would warrant a recovery on the facts appearing here, if they had occurred in this state. But that statute, in the nature of things, can have no extra-territorial application, and does not give an action for an act done out of this state. (Campbell v. Rogers, 2 Handy’s Ohio Rep. 110. 9 Law Rep. N. S. 329. 4 Am. Law Reg. 747.)

(b) Whether an act or omission affords a right of action depends on- the law of the place where it is done or omitted. As to matters of this kind, the states are foreign to each other. The laws of one state are not in force as laws in another, and the act done in Connecticut may, for all the purposes of a right of action under the laws of this state, as well have been done in Russia. And as to any knowledge of the laws of another state or country, courts of this state may as well take cognizance of the" laws of Russia as those of Connecticut. Our statutes are not in force as law, in Connecticut, .and they cannot give rights of action, for causes not otherwise actionable, arising or occurring within the limits of that state. The plaintiff’s right of action, and the nature and extent of his rights, and the relief to be had, depend on the law of the state where the acts complained of occurred and the cause of action arose.

[New York Special Term, October 5, 1857.

Peabody, Justice.]

The commonriaw, as has been said, we are to intend prevails there, and by that law the plaintiff could have no action. Whether there be any statutory provision in that state, and if so what it is, we are not to know save by legal evidence. This evidence does not appear in the case. The complaint should state the fact, like any other fact, in the first place, and if it be not admitted by the pleadings, it should be proved, like any other fact, on the trial. In this case it is neither pleaded nor proved, and indeed the case and the arguments of counsel bear ample evidence that the recovery was expected and claimed by the plaintiffs under a statute of this state passed in the year 1847. It is, I suppose, beyond all doubt that the plaintiff cannot maintain an action by virtue o.f that statute, on the facts appearing here, and the' judgment must accordingly be reversed.

As it is apparent, however, that a fact material to a recovery is omitted in the pleadings and proofs, and as the statute of limitations would be a bar to a new suit, the plaintiff must have liberty to amend his complaint in this respect, on payment of all the costs since the service of his summons, and have a new trial. If he do this within twenty days after service of this order, he may have a new trial. If not, judgment must be entered for the defendants with costs.

See also Hunt v. Town of Pownal, (19 Verm. Rep. 411;) Phillimore on Int. Law, 356. 7.