
    George W. Provost, as Administrator, etc., of Alice Provost, Deceased, Respondent, v. International Giant Safety Coaster Company, Appellant.
    First Department,
    July 11, 1912.
    NTegligence — action by foreign administrator—damages.
    Under section 1836a of the Code of Civil Procedure, a husband, appointed administrator of his wife’s estate in the State of New Jersey, may, without obtaining ancillary letters, maintain an action in this State under section 1903 of the Code of Civil Procedure to recover damages sustained by her death from defendant’s negligence.An award of $7,500 to a husband for the loss of his wife’s services is excessive and should be reduced to $5,000 where at the time of her death she was forty-one years of age, and acted as housekeeper for her husband, keeping no servant.
    Scott, J., and Ingraham, P. J., dissented, with opinion.
    Appeal by the defendant, the International Giant Safety Coaster Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of February, 1912, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 9th day of February, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      Jeremiah J. Coughlan, for the appellant.
    
      Don R. Almy, for the respondent.
   McLaughlin, J.:

On the 3d of September, 1911, the defendant was operating a roller coaster ” at Coney Island, in the State of New York. The “ roller coaster” was constructed of a series of trestles about ten feet apart, on which a track was laid. Cars were run ' over the track carrying passengers for hire. The cars were loaded, with people at a starting platform and then run up an incline by an endless chain, and from the top of the incline they ran by gravity over a series of hills and valleys and around curves to the starting point. On the day in question plaintiff’s intestate was a passenger in one of the cars, which was derailed, and she was killed. At the time of the accident the intestate was residing with her husband in the State of New Jersey, where he obtained letters of administration upon, her estate. After obtaining such letters he brought this action in his representative capacity to recover the damages .alleged to have been sustained by reason of her death on the ground that the same was caused by defendant’s negligence. He had a verdict for $7,500 and from the judgment entered thereon, and an order denying a motion for a new trial, defendant appeals.

The main question presented by the appeal is whether an administrator appointed in the State of New Jersey can maintain an action in the State of New York under section 1902 of the Code of Civil Procedure. I think such action can be maintained. The section referred to provides that “The executor or administrator off a decedent * * * may maintain an action to recover damages, for a wrongful act, neglect or default, by which the decedent’s death was caused, against a ¡natural person who, or a corporation which, would have been ¡liable to an action in favor of the decedent by reason thereof if death had not ensued.” Section 1836a of the Code of Civil Procedure provides, among other things, that “an executor or administrator duly appointed in any other State, territory or district of the United States, or in any foreign country, may sue or be sued in any court in this State in his capacity of executor or administrator in like manner and under like restrictions as a non-resident may sue or be sued, * * .(See Laws of 1911, chap. 631.)

In Lang v. Houston Street, etc., R. R. Co. (75 Hun, 151; affd., 144 N. Y. 717) it was held that an administrator to whom letters were issued in the State of Pennsylvania, upon which ancillary letters were issued in the State of New York, could maintain, in. the courts of New York, an action to recover damages resulting from the death of his testator. It was there urged that the statute (Code Civ. Proc. § 1902) did not give such right; that the right was limited by express words to “the executor or admnistrator,” which excluded a right of action on ancillary letters. But the court held that the statute is a remedial one, and should be so construed as to give, instead of withholding, the remedy intended to be provided; that the important part of it is that which gives a right of action; that the part which provides who may enforce it is merely incidental. A foreign administrator may obtain ancillary letters of administration in this State, but in doing so is subjected to expense and considerable delay, to obviate which section 1836a was evidently enacted. The plaintiff has been duly appointed executor of the decedent’s estate, and if death had not ensued she could unquestionably have maintained an action in this State to recover damages for her injuries. It seems to. me that under section 1836a plaintiff has the right to maintain this action. He fairly comes within its provision.

It is suggested that the distribution of the amount recovered under the laws of New Jersey is different from that under the laws of New York, but there is no evidence of that fact, and if there were it would make no difference, because the question of the distribution of the proceeds of the judgment, when collected, is not an issue nor,is there any such question before the court.

The intestate, at the time of her death, was forty-one years of age, she left her surviving the plaintiff, but no children. She had, during her married life, acted as housekeeper for her husband, keeping no servant. There is no evidence of any pecuniary loss to the husband, other than the loss of her services. Under such circumstances, it seems to me that an award of $7,500 is excessive, and for that reason the judgment and • order appealed from should be reversed, unless the plaintiff stipulates to reduce the same to $5,000, and if such stipulation be given, then the judgment is affirmed, without costs to either party.

Miller and Dowling, JJ., concurred; Ingraham, P. J., and Scott, J., dissented.

Scott, J. (dissenting):

While I concede that the question is a narrow one, and not free from difficulty, I incline to the opinion that an action authorized by section 1902 of the Code of Civil Procedure, must be brought by an executor or administrator, original or ancillary, appointed in this State. The right of action is purely the creation of statute, and surely the Legislature which created the cause of action could determine how the proceeds of such an action should he distributed. The claim does not come to the executor or administrator from his decedent,' and forms no part of the estate.- The cause of action is really created for the benefit of the persons named in the statute, the right to prosecute it being given to the executor or administrator merely as a convenience. Indeed, under certain circumstances, an administrator can he specially appointed for no other purpose than to present.such a claim, even if there be an executor or administrator existent for general purposes. Section 1903 of the Code places the distribution of the recovery under the supervision and control of the surrogate who would, however, be unable to exercise such supervision and control over a foreign administrator. I think that the judgment and order appealed from should be reversed and the complaint dismissed, with costs to the appellant.

Ingraham, P. J., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates as stated in opinion, in which event the judgment as so modified is affirmed, without costs. Order to be settled on notice.  