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(182 N.Y.S.) tive of the decedent (Code Civ. Proc. $ 1902), is abated by the death of the wrongdoer, and does not survive against the wrongdoer's estate. The common law and statutory history of actions ex delicto is extensively discussed in the case cited, and it is pointed out that, except as modified by statute, all actions ex delicto abate upon the death of either party. Such modifications are found in the Revised Statutes of 1828. 2 R. S. pp. 447, 448, $$ 1, 2. Section 1, providing that the right to maintain the action against the wrongdoer and after his death against his executors or administrators by the person injured through wrong done to his property rights or interest is the same as though the action were founded upon contract, is limited by section 2, which provides:

“But the preceding section shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator.”

These provisions of the Revised Statutes have been incorporated in section 120 of the Decedent Estate Law (Laws 1909, c. 18 (Consol. Laws, c. 13]), which reads:

"For wrongs done to the property, rights or interests of another, for which an action might be maintained against the wrongdoer, such action may be brouglit by the person injured, or after his death, by his executors or administrators, against such wrongdoer, and after his death against his executors or administrators, in the same manner and with the like effect in all respects, as actions founded upon contracts. This section shall not extend to an action for personal injuries, as such action is defined in section thirty-three hundred and forty-three of the Code of Civil Procedure; except that nothing herein contained shall affect the right of action now existing to recover damages for injuries resulting in death."

By subdivision 9 of section 3343 of the Code, to which reference is made in the Decedent Estate Law, supra, the definition is that a "personal injury” includes libel, slander, criminal conversation, seduction, and malicious prosecution; also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff, or of another. From these statutes we see an enumeration of the only instances in which the rigors of the common law have been modified with regard to the maintenance of actions ex delicto, with the single additional and important exception of the cases where death ensues as the result of the injury, and in such cases a right of action is given only to the representatives of the person whose death was occasioned by the injury. Code Civ. Proc. $ 1902.

The action authorized by section 1902 of the Code is not a derivative action; it is not the same cause of action that existed in favor of the deceased in his lifetime and revived in favor of his next of kin, although the conditions specified by the statute upon which such an action may be maintained is the right of the injured person to maintain an action if death had not ensued. McKay v. Syracuse R. T. Co., 208 N. Y. 359, 363, 101 N. E. 885. The action under section 1902, supra, is an entirely new, original, and distinct cause of action, created by statute and based upon the theory of an injury not to the estate of the deceased, but to the estate of the beneficiaries of the de

ceased named in the statute. Kelliher v. N. Y. Central & H. R. R. R. Co., 212 N. Y. 207, 211, 105 N. E. 824; Hamilton v. Erie R. R. Co., 219.N. Y. 343, 114 N. E. 399, Ann. Cas. 1918A, 928; Matter of Meng, 227 N. Y. 264, 276, 125 N. E. 508.

Speaking of the statutory right of action for causing death, the Court of Appeals in Hegerich v. Keddie, supra, 99 N. Y. 268, 1 N. L. 793, 52 Am. Rep. 25, say:

“It will be observed also that the statute, although creating a new cause of action, and passed for the express purpose of changing the rule of the common law in respect to the survivability of actions, and conferring a right upon representatives which they did not before possess, does not undertake, either expressly or impliedly, to impair the equally stringent rule which precluded the maintenance of such actions against the representatives of the offending party. The plain implication from its language would, therefore, seem to be at war with the idea that the Legislature intended to create a cause of action enforceable against, as well as by, representatives. The cause of action thereby given is not to the estate of the deceased person, but to his or her representa. tives as trustees, not for purposes of general administration, but for the exclusive use of specified beneficiaries."

In Matter of Meekin v. Brooklyn Heights R. R. Co., 164 N. Y. 151, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635, the court say:

"In Hegerich v. Keddie, 99 N. Y. 258, it was held that the cause of action for damages from negligence resulting in death abates upon the death of the wrongdoer, and that an action cannot be maintained against his representatives. This is a necessary result from the fact that the Code modifies the Revised Statutes and the common law onl as to the personal representatives of the person injured, and not as to those of the person who inflicted the injury."

[4, 5] While a foreign statute, not the law in this state, may give rise to an obligation which, if transitory, follows the person and may be enforced wherever the person may be found, and while it is not essential that to enforce such a right the foreign statute must be duplicated here or supported here by a similar statute, such a right will not be enforced if sound reasons of public policy make it unwise for us to lend our aid. Hence, the law of the forum is material when it sets a limit of policy beyond which such obligations will not be enforced there. See Loucks v. Standard Oil Co., 224 N. Y. 110, 120 N. E. 198. By the settled law of this state we are informed that section 1902 of the Code marks a departure from the common-law rule in favor of the next of kin of the deceased injured person, in that it creates a new cause of action not known to the common law, but that with respect to the wrongdoer himself there has been no departure from the common law. The action for death may be brought against the wrongdoer himself, but it abates upon his death and may not be maintained against his personal representatives. In this respect there has been no modification of the common law. This, therefore, seems to be the declared public policy of our state, steadfastly maintained both by legislative enactment and judicial decision down to the present time. When we speak of the public policy of the state, we mean the law of the state, whether found in the Constitution, the statutes, or judicial records. People v. Hawkins, 157 N. Y. 1, 12, 51 N. E. 257, 42 L. R. A. 490, 68 Am. St. Rep. 736. In a judicial sense, public

(182 N.Y.S.) policy does not mean simply sound policy, or good policy, but it means the policy of a state established for the public weal “either by law, by courts, or general consent.” Hollis v. Drew Theological Seminary, 95 N. Y. 171; Matter of Lampson, 33 App. Div. 51, 53 N. Y. Supp. 531. In the Girard Will Case, 2 How. 127, 11 L. Ed. 205, Mr. Justice Story said:

“Nor are we at liberty to look at general considerations of the supposed public interests and policy of Pennsylvania upon this subject, beyond what its Constitution and laws and judicial decisions make known to us, The question, what is the public policy of a state, and what is contrary to it, if inquired into beyond these limits, will be found to be one of great vagueness and uncertainty, and to involve discussions which scarcely come within the range of juaicial duty and functions, and upon which men may and will complexionally differ."

Neither under our statutes nor our decided cases can the estate of the wrongdoer, in such a case as the one at bar, be depleted to the detriment of his heirs at law, next of kin, and creditors. It does not seem to me that a declared public policy denying rights to a resident may be abrogated in favor of a nonresident who is seeking to substitute the policy of a foreign state in place of our own. The motion should be denied.

Motion denied.

CAMPOCCIA V. PANAMA R. CO. et al. (Supreme Court, Special Term, New York County. June 16, 1920.) 1. Admiralty On 20—State Workmen's Compensation Law unconstitutional, as

a regulation of maritime workers.

The Workmen's Compensation Law is unconstitutional, in so far as it regulates and provides for injuries suffered by an employé in maritime

work. 2. Admiralty On 20-Maritime law governs rights of servant injured in mari.

time work.

A servant injured while engaged in maritime work is entitled to resort to his common-law remedy in the state court, but the maritime law determines his rights.

On reargument. Order on former hearing set aside.
For former opinion, see 110 Misc. Rep. 116, 181 N. Y. Supp. 14.

DAVIS, J. [1] The Supreme Court of the United States, in the case of Knickerbocker Ice Co. v. Lillian E. Stewart, 252 U. S. -- 40 Sup. Ct. 438, 64 L. Ed. — (decided May 17, 1920), reversing the determination of the Court of Appeals in such action (reported 226 N. Y. 302, 123 N. E. 382), has held that in so far as Congress undertook (chapter 97, 40 Stat. 395 (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, $ 991, subd. 3, and section 1233]), "to permit application of Workmen's Compensation Laws of the several states to injuries within the admiralty and maritime jurisdiction, and sought to authorize and sanction action by the states in prescribing

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexen

as to all concerned, rights, obligations, liabilities, and remedies designated to provide compensation for injuries suffered and employés in maritime work," it was beyond the power of Congress so to do, and that therefore the Workmen's Compensation Law of the state (Consol. Laws, c. 67) was unconstitutional, in so far as it regulated and provided compensation for injuries suffered by an employé engaged in maritime work. The plaintiff in this case was engaged in a maritime employment at the time his injuries are alleged to have been suffered.

[2] This application for a reargument of the motion heretofore made for judgment on the pleadings in favor of John T. Clark & Son, one of the defendants, which motion was determined in favor of such defendant prior to such decision of the Supreme Court of the United States, must therefore be granted, and the order directing judgment in favor of such defendant set aside, and the motion for judgment on the pleadings in favor of such defendant denied, with $10 costs. Plaintiff is entitled to resort to his common-law remedy in the state court. The maritime law, however, determines his rights in such an action to recover for any injuries in the course of his employment as longshoreman. Schuede v. Zenith S. S. Co. (D. C.) 216 Fed. 566, affirmed 244 U. S. 646, 37 Sup. Ct. 652, 61 L. Ed. 1369; Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Matter of Doey v. Howland Co., 224 N. Y. 30, 120 N. E. 53; Knapp v. U. S: Transp. Co., 181 App. Div. 432, 170 N. Y. Supp. 384.

Settle order on notice.

BULOVA v. E. L. BARNETT, Inc. (Supreme Court, Appellate Terin, First Department. June 14, 1920.) Parties C 40(7)—Invalidity of assignment and indemnity agreement to

original debtor, executed after assignment, did not entitle assignor to intervene in action on assignment; "interest in the subject of action."

In action for work, labor, and services rendered by plaintiff's assignor, a corporation, such assigror was not entitled, as having an "interest in the subject" of the action, under Code Civ. Proc. $ 452, to be made a party defendant on the ground that the assignment was made by an unauthorized officer when the corporation was insolvent, to the knowledge of the oflicer and plaintiff, and that after the assignment the corporation was paid the debt by the defendant debror upon giving the debtor its indemnity agreement, for the indemnity transaction, being subsequent to the assignment, could not be considered in determining the assignor's motion to be made a party.

[Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Interest.] Appeal from City Court of New York, Special Term.

Action by Adolph Bulova against E. L. Barnett, Incorporated, in which the S. S. Corporation petitioned to be made a party defendant. From an order requiring plaintiff to bring in the petitioner as a party defendant, plaintiff appeals. Order reversed, and motion denied. See, also, 111 Misc. Rep. 150, 181 N. Y. Supp. 247. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexen (182 N.Y.S.) Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

Sanford H. Cohen, of New York City (George Cohen, of New York City, of counsel), for appellant.

Charles J. Doherty, of New York City, for respondent.

BIJUR, J. Plaintiff sues E. L. Barnett, Incorporated, on a cause of action for work, labor, and services alleged to have been rendered to it by the S. S. Corporation, which claim plaintiff alleges had been assigned to it. The petition of the S. S. Corporation, upon which this order was granted, sets out that the assignment was made by an officer who had no authority, and that the corporation at the time was insolvent, to the knowledge of said officer and of the plaintiff; also that after the assignment had been made the S. S. Corporation procured the Barnett, Incorporated, to pay the debt to it (S. S. Corporation) which Barnett, Incorporated, did upon the S. S. Corporation's giving an indemnity agreement to Barnett, Incorporated.

Upon this state of facts I see no warrant for the order made herein, which must find its authority, as conceded by both counsel, in section 452 of the Code of Civil Procedure. This is an action at law to recover for work, labor, and services rendered to the original defendant. The S. S. Corporation has no "interest in the subject thereof,” in the sense in which those words are used in the section quoted. Chapman v. Forbes, 123 N. Y. 532, 26 N. E. 3; Bauer v. Dewey, 166 N. Y. 402, 60 N. E. 30. To hold otherwise would be to permit every assignor of a claim to be made a party defendant to the suit of his assignee against the original debtor upon the mere statement that the fact or the validity of the assignment was contested.

The respondent makes the further contention that, having become an indemnitor to the original defendant, it is entitled to be made a party defendant to protect its interests as indemnitor. While this contention is not sought to be supported by any authority, it suffices, I think, to dispose of it, to point out that the indemnity transaction was subsequent to the acquisition by the plaintiff of the cause of action sued upon, and cannot, therefore, be considered in determining this motion.

Order reversed, with $10 costs, and motion denied, with $10 costs. All concur.

FISCHMAN v. SANITARY TOILET CO. (Supreme Court, Appellate Term, First Department. June 24, 1920.) 1. Bailment Owl-Purchaser of towel from employé in station held not en

titled to recover for loss of coat handed to such employé.

Where plaintiff purchased towel from employé of defendant, who had privilege of selling towels in public toilet room of railroad station, and at the same time handed his orercoat to such employé, though there were hooks fastened on the wall, on which to hang clothing, the defendant was not liable for loss of coat on the plaintiff's return therefor two hours later, on theory that bailment existed; the plaintiff not being defendant's guest. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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