
    David M. Gurofsky, as Administrator, etc., of Fanny C. Gurofsky, Deceased, Plaintiff, v. Lehigh Valley Railroad Company, Defendant.
    Fourth Department,
    July 9, 1907.
    Survival of action — death in foreign State — comity — action by alien.
    An action in this State to recover for the death of a person in Pennsylvania can . only he maintained when the right exists in that State. '. Only the right of action,given by the foreign law Will tie'enforced here on the principles of comity. •
    ■Under the Pennsylvania statute no right of action exists for negligence causing death when the deceased and all persons entitled to recover were residents of Canada at the time of the accident and death.
    The statute of this State gives no right of action for a death which took place without the State.
    McLennan, P. J., dissented.
    Motion by the plaintiff, David M. Gurofsky, as administrator, etc., for a new trial upon a case containing exceptions, ordered to be. heard at the Appellate-. Division in, the first instance upon' a non-suit directed by the court after a trial at the Erie Trial Term.
    
      
      Shire & Jellinek and Vernon Cole, for the plaintiff.
    
      Bissell, Carey & Cooke, Lyman M. Bass and Elton H. Beals, for the defendant.
   Williams, J.:

The exceptions should be' overruled, and the motion for a new trial denied, with costs to the defendant.

The action waé brought to recover damages.for injuries resulting in the death of plaintiff’s intestate, alleged to have resulted from defendant’s negligence.

The intestate, a girl about twenty-one years of age, met her death in Pennsylvania while going from Suspension Bridge to New York city on one of defendant’s train's. She was born and always resided in Canada. She left surviving no husband or children, but a father and mother, both residents of ‘Canada. . The plaintiff administrator is a cousin of the intestate, and resides in the Stale of New York.

The nonsuit did not involve the questions of defendant’s negligence or the absence óf contributory negligence on the part of the intestate. It was made to rest on the proposition that no recovery could be had because no right of action existed under the laws of Pennsylvania, the intestate and her father and mother all being resident's of Canada at the time the accident and death occurred. . •

The statute of Pennsylvania (Laws of Penn. of 1851, No. 358, § 19) provides: “ Whenever death 'shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or, if there be no widow, the personal representatives may maintain an action for and recover damages for the death thus occasioned.”

The act of 1855 provides : “ The persons entitled to recover damages for any injury causing death shall be the husband, widow, children or parents of the deceased, and no other relative, and the sum recovered' shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors.”' (Laws of Penn. of 1855, No. 323, § 1.)

, Since the act of 1855 no action exists in favor of an administrator under the- law of Pennsylvania. The action must be brought in the names of the persons entitled to recovery under the statute of 1855. (Books v. Borough of Danville, 95 Penn. St. 158.)

The present action is brought in the name of an administrator, but the complaint alleges who the next of kin are, and upon a recovery being had the same would' go to the father under oiir statutes (Code Civ. Proc. §§ 1902-1905, 2732), and very likely under the-Pennsylvania statute also. Possibly this form of action would answer under. Wooden v. W. N. Y. & P. R. R. Co. (126 N. Y. 10). ;

The more serious question is whether any right of action exists in favor of any one. It must be regarded as settled that an action in this State for the death- of a person in Pennsylvania can only be maintained where a right of action exists iii that State. It is only the right of action given by the law of that State which may be enforced here upon principles of comity. The liability of á party for his acts, whether wrongful or' negligent, depends upon the law of the place where the acts were- committed. (McDonald v. Mallory, 77 N. Y. 546; Wooden v. W. N. Y. & P. R. R. Co., supra.)

Ho right of action for this death exists in Pennsylvania because the deceased and the persons .entitled to the recovery, if any could be .had, all resided at the time of the accident and death in Canada. (Deni v. Penn. R. R. Co., 181 Penn. St. 525.)

■ The court in that case said: “ Our statute Avas not intended to confer upon non-resident aliens rights of action not conceded to them or to us by their- own • country, or to put burdens on our own citizens to be discharged for tlieir benefit. It has no extraterritorial force, and the plaintiff is not- Avithin the purview of it. While it is possible that the language of -the statute may admit of a construction which would include non-resident alien husbands, widows, children and parents of the deceased, it is a construction so obviously opposed to the spirit and" policy of the statute that Ave cannot adopt it.”. The Court of Appeals of this State recognizes this as the Iuav of Pennsylvania, Avhile holding the contrary as the laAv of New York. (Alfson v. Bush Co., 182 N. Y. 393.)

Such being the law of Pennsylvania, it would seem to follow that no right of action exists or can .be enforced in this State:

We do not think the action can be maintained upon the theory that the negligence causing' the injury -and death occurred in this State. The proofs would not support such-a finding of fact, and the statute of this State, gives no right of action for an injury and death taking place outside the State. Mor can it be maintained upon the theory that the right of action existed under the Pennsylvania statute, that only the right to .maintain the action is forbidden by the law of that State. If the. action cduld not be maintained there it cannot be here.-; - .

All concurred, except McLennan, P. J., who dissented.

Plaintiff’s exceptions overruled and motion for a new trial denied, with costs, and judgment directed for defendant on the verdict.  