
    Thomas Zeikus, as Administrator, etc., of George Zeikus, Deceased, Appellant, v. Florida East Coast Railway Company, Respondent.
    First Department,
    April 7, 1911.
    ITegligence — action for death — accident in foreign State —foreign corporation —jurisdiction—resident administrator — Florida statutes.
    An action by a resident administrator appointed in this State, to recover for the death of his intestate, which occurred in'another State through1 the alleged negligence of defendant, a foreign corporation, can only be maintained upon allegations and proof that the statute of the State where the injury occurred gives a right of action and is similar to our own.
    Where the only allegation respecting the foreign statute is that the statutes and laws of the foreign State provide that where a person is tilled within said State by reason of another’s negligence, an action for damages may be brought by his widow or minor children or, if none survive him, by any person dependent upon his support, or if no widow, minor child or person dependent on his support survive him, then by his executor or administrator, but the foreign statute of distribution is not set forth, and there is no averment as to the residence and identity of the distributees entitled thereunder to share in the recovery, a demurrer on the ground that the court lacks jurisdiction and that the facts alleged do not constitute a cause.of action will.be sustained.
    The court will not take jurisdiction of such action unless it appear that it is prosecuted for the benefit of citizens of this State, or, if brought by a resident administrator for the benefit of non-residents, that the latter would have a cause of action in this State if the injury had occurred here.
    Section 1780 of the Code of Civil Procedure, providing that an action may be maintained by a resident of this State against a foreign corporation for any cause of action, does not require our courts to take jurisdiction of this class of actions merely because an administrator has been appointed here.
    Appeal by the plaintiff, Thomas Zeikus, as administrator, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of January, 1911, denying the plaintiff’s motion for judgment on the pleadings.
    
      Charles Goldzier, for the appellant,
    
      George S. Scofield, for the respondent.
   Miller, J.:

The defendant demurred to the complaint on the grounds that the court had no jurisdiction, and that the complaint did not state facts sufficient to constitute a cause of action. The action is brought to recover 'for the death of the plaintiff’s intestate, alleged to have been caused by the def endant’s negligence in the State of Florida. The plaintiff is a brother of the deceased, resides in this State and was appointed administrator by the Surrogate’s Court of the county of New York. The only averment with regard to the Florida statute is: That the statutes and laws of the State of Florida provide, and at the times hereinbefore referred to, did provide, that where a person is injured and died within said State by reason of the carelessness or negligence of another, and no action for damage is brought' by the person so injured during his lifetime, an action for damages sustained by such injury and death might and could he brought by his widow or minor children, or, if none survived him, by any pefson dependent upon his support; and if neither'widow, minor child, or person dependent upon his support survived him, then by the executor or administrator of his estate. ” It is averred that the decedent did not leave him surviving any widow, child or person dependent upon his support.

It appears .to be regarded by the courts of this State as settled law that an action like this can only he maintained in this State upon proof that the statute of the State in which the injury occurred gives the right of action and is similar to our own statute. (Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48; Wooden v. W. N. Y. & P. R. R. Co., 126 id. 10; Strauss v. New York, N. H. & H. R. R. Co., 91 App. Div. 583; Howlan v. N. Y. & N. J. Tel. Co., 131 id. 443.). The demurrer was sustained by the learned justice at Special Term on the ground that the Florida statute as pleaded is unlike the statute of this State (70 Misc. Rep. 339), and in that view we concur. Our statute gives a cause of action to the executor or administrator of the decedent for the benefit of a surviving husband, wife or next of kin, and the plaintiff in such an action must allege and ■ prove that the decedent left him or her surviving a husband, wife or next of kin. The damages are measured by the pecuniary loss sustained by the person or persons for whose benefit the action is prosecuted. (Code Civ. Proc. § 1902 et seq.) The Florida statute as pleaded gives the cause of action to the executói or administrator, the decedent not having left him surviving a widow, minor child, or a person dependent upon his support, but there is nothing in the complaint to show for whose benefit the action is being prosecuted. The Florida statute of distribution is not pleaded and we are not informed who the distributees under it are or where they reside. It ■ may be that the decedent left creditors who will be entitled to any recovery. The suit, therefore, is not for the benefit of persons who would have a cause of action under our statute, and, of course, the rule of damages is different.

While section 1780 of the Code of Civil Procedure provides that an action may be maintained by a resident of this State against a foreign corporation for any cause of action, it has not been held that the section requires the courts of this State to take jurisdiction in this class of actions simply because an administrator has been appointed in this State.

The appellant claims that the statute as pleaded is similar to , the statute of Connecticut, which was involved in Leonard v. Columbia Steam Navigation Co. and Strauss v. New York, N. H. & H. R. R. Co. (supra). But it will be seen, by reference to the Connecticut statute, that the damages recovered in such an action inure to the benefit of the, husband, widow and heirs of the deceased person. (Gen. Stat. Conn. [Rev. of 1887] chap. 73, tit. 18, § 1008.) If this action were being prosecuted by or for the benefit of the widow, or next of kin, residents of this State, an entirely different question would be presented.

Of course, the construction of the Florida statutes must be governed by the decisions of the courts of that State. What rule of damages shall be applied in an action prosecuted for the benefit of an estate? In case of a recovery shall it be distributed here? If so, according to what statute of distribution? Would the pendency of this suit be a bar to a suit in Florida by an administrator appointed there at the instance, for example, of Florida creditors? Queries which suggest practical reasons for remitting the parties, in a case like this, to the courts familiar with the administration of the laws involved.

. It-does not appear upon what grounds the surrogate acquired jurisdiction to grant letters of administration, and no question of fraud or collusion arises as in Hoes v. New York, N. H. & H. R. R. Co. (173 N. Y. 435); Pietnaroia v. N. J. & H. R. R. & F. Co. (131 App. Div. 829; 197 N. Y. 434). In the latter case Judge Gray, writing for the majority of the,Court, said:. “Asa question of policy, it is intolerable that our courts should. be impeded in their administration of justice, and that the people of the State should be burdened , with expense, in redressing wrongs committed in another State, for the benefit solely. of its citizens, and where the remedy is in the enforcement of its statutes.” ' ■

It seems to me that it is within the discretion of the Supreme Court to decline jurisdiction in a case like this, and that that discretion should be exercised unless it appears-that the action is being prosecuted for the benefit of citizens of. this. State, or; if by a resident administrator properly appointed, for the benefit of non-residents, that the latter' would at least have a cause ■ of action in this State, if the injury had occurred here. The Special Term-was ..plainly justified in denying the plaihtifPs-. motion.

The order should be affirmed, with ten -dollars costs and disbursements.

'Ingraham, P. J., Laughlif, Clarke and Scott, JJ., • concurred.

Order affirmed,, with ten dollars costs and disbursements..  