
    John F. Hughes, Plaintiff, v. New York, Ontario and Western Railway Company, Respondent. Avasta Hughes, as Administratrix, etc., of John F. Hughes, Deceased, Appellant.
    Second Department,
    September 23, 1913.
    Limitation of action—Federal Employers’Liability Act — limitation of action—election of remedies—amendment to bring cause under Federal statute.
    Where plaintiff, after the commencement of an action for personal injuries based on the common law, as modified by the statute of the State of Pennsylvania, dies, his administratrix is not entitled, after three years, to be substituted as plaintiff and to serve an amended complaint setting forth an action under the Federal Employers’ Liability Act, which provides that an action thereunder must be begun within two years from the time the cause of action accrued, although such act as amended provides “ That any right of action given by this Act to a person suffering injury shall survive.”
    Appeal by Avasta Hughes, as administratrix, etc., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Orange on the 28th day of March, 1913, denying her motion to be substituted as plaintiff in this action, and for leave to make and serve an amended complaint as administratrix.
    
      Benjamin Patterson, for the appellant.
    
      Elbert N. Oakes [Thomas Watts and John Bright with him on the brief], for the respondent.
   Thomas, J.:

The summons served January 13, 1911, was followed on March twenty-ninth by the complaint, which showed that the plaintiff, a conductor, was injured on his train on April 21,1910. It is alleged that defendant was organized under the laws of this State and “ operating a railroad in various parts of ” this State “ and the State of Pennsylvania, and at the places hereinafter specified ” and that at the date of the accident the plaintiff “was in the employ of defendant as a conductor upon a train which was being run by defendant along the fine of its railroad near Starlight, in the State of Pennsylvania. ” Then the cause of the accident and the statute of the State of Pennsylvania are pleaded. Issue was joined, but the action had not been tried at the time of the plaintiff’s death on March 12, 1912. On October 29,1912, letters of administration were issued to decedent’s widow and a motion was made in February, 1913, to substitute the administratrix as plaintiff and to permit her to serve an amended complaint, basing the action upon the Federal Employers’Liability Act, entitled “An Act relating to the liability of common carriers by railroad to their employees in certain cases,” passed April 22, 1908, and the amendatory act of April 5, 1910. (See 35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143.) The action was not brought under that act, but is specifically based on the common law as modified by the statute of the State. An action under the Federal law must be begun within two years from the time the cause of action accrued (35 U. S. Stat. at Large, 66, § 6, as amd. by 36 id. 291, § 1), but after nearly three years it is sought to convert the action under the State law into an action under the Federal law, thus extending the statute by a substituted cause of action. On April 5,1910, the Federal act was amended so as to provide “ That any right of action given by this Act to a person suffering injury shall survive,” etc. (35 U. S. Stat. at Large, 66, § 9, added by 36 id. 291, § 2.) But the right cannot survive the time limited for its exercise, and when the person to whom the right is initially given elects to proceed under the law of the State, the right to proceed under the Federal statute is at least dormant, and ceases after the expiration of the two years. The Federal statute is tendered to him who, entitled, chooses to employ it. He may prefer the law of the State, as the injured person did in the present instance. But such law cannot be exploited and, upon emergency, the action be changed into one under the Federal law. There is not a suggestion of fact in the original complaint indicating intention to avail of the Federal statute.

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

Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  