
    Martin Wollman, Plaintiff, v. National Fire Insurance Company of Hartford, Defendant.
    (City Court of the City of New York,
    Special Term,
    June, 1911.)
    Conflict of laws — In general — Enforcing penal laws of another State.
    A statute of a foreign State, providing that, in an action upon an insurance policy, the jury may award damages to the plaintiff not exceeding ten per cent, of the loss and a reasonable attorney’s fee, in case the company appears to have vexatiously refused to pay the loss, is in the' nature of a penal statute and not enforceable in this State; and an allegation in the complaint in an action to recover upon the policy, setting up such statute, will be stricken out on motion.
    Motion to strike out certain allegations as immaterial. Facts appear in opinion.
    Geo. Levy, attorney for defendant, for the motion.
    Wollman & Wollman, for plaintiff, opposed.
   Schmuck, J.

The plaintiff, a resident of the city of New York, sues 'the defendant, a foreign corporation, for a loss by fire of stock and merchandise. The contract of insurance was made in the State of Missouri, the property was situated and the cause of action arose in that State. The plaintiff, believing that the laws of Missouri not only dictate whether a cause of action herein exists, by governing the question of what contract was made between the parties, but also regulate and control the manner of enforcement, in his complaint sets forth section 7068 of the Revised Statutes of Missouri, which deals with actions based upon policies of insurance. With this allegation, known as paragraph 9 of the complaint, the defendant is incensed and demands that 'it be eradicated before being compelled to plead or answer to the complaint. The basis of the application is that the Missouri statute referred to has no control of an action brought in this State, as it affects the enforcement of the remedy and places upon an insurance company defending an action a burden unknown to the laws of this State. If the statute referred to has no application to an action brought in this court, then the defendant is justified in demanding of the court the exercise of the discretion vested by virtue of provisions of section 545 of 'the Code of Civil Procedure. An examination of the statute indicates that if a jury discovers an insurance company to have vexatiously refused to pay a loss the court or jury, besides the amount of the loss, may allow the plaintiff damages not exceeding ten.per cent, of the loss and a reasonable attorneys fee. The effect of the statute is clearly for the purpose of controlling the effect of a contract and not of determining the nature thereof. Again, the effect thereof is to impose a penalty upon a defendant if a court or jury discover that payment of the loss has been vexatiously resisted. The motion, therefore, raises the question, Will the courts of this State enforce a statute in another State, which is in the nature of a penalty.? From a reading of the authorities it would seem as if the statute does not control this court. It is quite true, in fact too plain for argument, that the provisions of a contract must be the same in every State. Valk v. Erie R. R. Co., 130 App. Div. 440. Therefore, if this statute has to do with the question whether the agreement made between the parties was a contract, it would control and govern the courts of all other States in an action based upon the agreement, for there is no surer aphorism of the law than that the lex loci contractus controls the terms and provisions of the contract. But, as has been indicated, the statute has naught to do with the provisions of the contract. It endeavors to add something to it regardless of the agreement of the parties in a manner obnoxious to the laws of this State. In short, it imposes a penalty. That courts of this 'State are not bound by a penalty imposed by the laws of another State is the trend of the decision of Curtis v. D., L. & W. R. R. Co., 74 N. Y. 116. Likewise it would appear from Williams v. C. R. R. of N. J., 93 App. Div. 582, wherein a statute of New Jersey limiting the liability of the carrier was held to have no application to an action brought in this State, that a foreign statute limiting liability was incapable of enforcement in this State. It would appear, therefore, that while the law of the State where the contract was made will govern so far as the validity and construction of the contract is concerned, it is, however, of no avail when it affects the rights and remedies of the parties thereto. Valk v. Erie R. R. Co., supra. As this court is not controlled by the Missouri statute, for the reasons above stated the allegation thereof in the complaint is immaterial, irrelevant and redundant. The motion to strike out is, therefore, granted. Submit order granting motion and permitting defendant, within six days after entry of the order herein, to plead or answer. Let the order be settled upon one day’s notice.

Ordered accordingly.  