
    Pietro Pietraroia, as Administrator, etc., of Carmarlo Galiazzo, Deceased, Respondent, v. New Jersey and Hudson River Railway and Ferry Company, Appellant.
    First Department,
    April 16, 1909.
    Railroad. — contributory negligence —courts—jurisdiction — when jurisdiction over transitory action will not be exercised.
    Where a woman, who was endeavoring to overtake a car moving northward, stepped upon the other track and was killed by a south-bound car, and it appears that she must have seen the car which struck her and that it carried a brilliant headlight, a verdict in favor of her administrator will be reversed for contributory negligence on the part of the decedent.
    
      Where said accident happened in New Jersey, and the deceased, her husband and next of kin were residents of that State, and the corporation against which the action is brought is a New Jersey corporation, the courts of this State will refuse to exercise any jurisdiction of the action which they may have by reason of the fact that the administrator of the deceased appointed to administer assets here, is a resident of this State.
    Appeal by the defendant, the Hew Jersey and Hudson Biver Bailway and Ferry Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 16th day of June, 1908, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Clarence C. Thornall, for the appellant.
    
      Herbert C. Smyth, for the respondent.
   Houghton, J.:

The action is to recover damages for the negligent killing of plaintiff’s intestate while she was attempting to cross one of defendant’s tracks. The defendant is a Hew Jersey corporation, operates a ferry across the Hudson fiver from Hew York city to Fort Lee, and a double-track street railway running from that place to various, points in Horthern Hew Jersey.

In the evening of October 19, 1906, the deceased, in company with her husband and another man, were intending to board a north-bound car on Broad avenue, in whát is known as Palisades park. As they came to the far side of the avenue a car was observed going in the desired direction, and the husband and friend went ahead of the deceased to detain the car for her. Whether from unwillingness to delay or lack of understanding on the part of the conductor, he refused to hold the car and started it with the two men aboard. From the testimony on the part of plaintiff it is apparent that the deceased proceeded diagonally northward in the vicinity of the south-bound track in the hope of overtaking the car which her husband had boarded. A south-bound car coming at a rapid rate struck and killed her just as she was stepping over the outer rail of the south-bound track. It is also clear from the plaintiff’s own proof that the point of the accident was about seventy-five feet north of the intersecting street where the husband liad gotten aboard. Although there is some testimony that when the witnesses first observed the deceased she was four or five feet west of the south-bound track and in the vicinity of the northerly crosswalk of Central boulevard, it is manifest that the accident did not happen at that point, as the plaintiff now insists, but at a point considerably further north. The south-bound car carried a lighted reflector headlight which was very brilliant.

If it be conceded that the defendant was negligent in the speed at which the south-bound car was run, and that the motorman was careless in observing the movements of the decedent, still we are of the opinion that the judgment cannot stand because of the clear contributory negligence on the part of the deceased. She was walking toward the coining brilliantly lighted car. Her husband testifies that he heard a whistle, but whether the whistle sounded or not she was bound to look and to observe that a car was approaching upon the track which she was about to cross. The presumption is that she did look for it was something she could not help but see. Plaintiff’s counsel urges that the light was so bright that it blinded her, and that it was impossible, because of its brightness, for her to estimate its distance from her. These suggestions present no excuse. Had she only been injured and not killed, and had she testified that she looked, as the law compelled her to do, and did not see the light and the car, her testimony would have been deemed incredible as matter of law, and she must necessarily have been held guilty of contributory negligence in failing to exercise ordinary caution. (Dolfini v. Erie Railroad Co., 178 N. Y. 1.)

The plaintiff, a resident of the State of New York, was appointed administrator of the deceased on the ground that she, although a resident of the State of New Jersey, left property within the county' of New York consisting of a deposit in a savings bank to the credit of herself and her husband, or either.” On her death the husband drew out about one-half the amount, and on the trial testified that the other half belonged to his deceased wife. We are not prepared to say upon his testimony and the form of the deposit that none of the moneys belonged to the deceased, and that, therefore, the Surrogate’s Court had no jurisdiction to appoint the plaintiff administrator of her estate.

The accident occurred in the State of New Jersey and the defendant is a corporation organized under the laws of that State. The decedent and her husband and children were residents there. All the witnesses to the accident on both sides had to be imported to this State. In view of the pressure of business upon the courts of New York city, although the plaintiff may have had a technical right to bring the action here, it would seem that the trial should have been had in the other State.

In any event the verdict was against the weight of evidence as to lack of contributing negligence on the part of the deceased, and the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, P. J., concurred.

Ingraham, J. (concurring):

I concur with Mr. Justice Houghton in the view that the deceased was guilty of contributory negligence, but I think this is a case in which the court should decline to take jurisdiction of the cause of action sued on for the reason stated in Ferguson v. Neilson (11 N. Y. Supp. 524), Wertheim v. Clergue (53 App-. Div. 124) and Collard v. Beach (81 id. 582). In each of these cases the court had jurisdiction of the cause of action and of the parties but declined to exercise it on the ground that the action was to recover for a tort committed in a foreign State where both parties to the action were residents of that State. In this case the defendant was a foreign corporation having no business in this State and over which the courts of this State have no jurisdiction. The deceased was a resident of that State and her husband and next of kin, for whose benefit the action was brought, are also residents of that State. The plaintiff, who is a resident of this State, has obtained letters of administration upon the ground that the deceased had property in this State, a proposition which is doubtful bnt which I assume we cannot consider on this appeal. In this State, by sections 1902 and 1903 of the Code of Civil Procedure, an executor or administrator may maintain an action to recover damages for a wrongful act 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, but the damages recovered in such an action are exclusively for the benefit of the decedent’s husband or wife and next of kin, and when they are collected they must be distributed by the plaintiff as if they were unbequeathed assets left in his hands after payment of all debts and expenses of administration, and the complaint alleges that there is a like statute in New Jersey. It is, however, the statute of the State of New Jersey that gives the cause of action, and the action is thus brought to enforce the law of New Jersey for the exclusive benefit of citizens of New Jersey against a New Jersey corporation for a tort committed in the State of Newr Jersey.^ If death had not ensued as the result of this accident the courts of this State would have had no jurisdiction to determine whether or not the defendant was liable for the accident, and if the cause of action was given to the persons for whose benefit it could be brought the court would have had no jurisdiction.

The New Jersey statute gives a cause of action to a New Jersey administrator of the decedent, but this plaintiff is not a New Jersey administrator, he having been appointed by the surrogate of the county of New York only. The laws of this State also give such a cause of action, but it is to recover for an injury causing death in this State and solely for the benefit of the husband or -wife and next of kin of the decedent. The plaintiff, who has no authority from the State of New Jersey to sue, brought this action to enforce the law of New Jersey, and the right of the husband and next of kin to recover the damages which they have sustained by reason of the alleged wrongful act. No resident of this State had the slightest interest in this controversy, and certainly the objection to the courts of this State concerning themselves with controversies between nonresidents apply with much greater force where the courts of this State would have no jurisdiction but for the fact that by reason of there being a small amount of personal property in this State an administrator is appointed to administer such personal property. If, technically speaking, the Supreme Court of the State of New York had jurisdiction of the action, the plaintiff being a resident, the courts are not bound to exercise the jurisdiction where those solely benefited are non-residents and where no reason exists why the liability cannot be enforced in the State where the parties reside and where the accident happened. The statutory law of this State has no extraterritorial force and the provisions of the Code of Civil Procedure to which I have referred would not give to the plaintiff or to individuals a cause of action for a death caused by negligence in the State of New Jersey, but resort must be had to the laws of that State to determine whether or not a cause of action exists. While the courts of this State have taken jurisdiction, to protect its own citizens where injury has been occasioned by the negligence of a non-resident, either individual or corporation, there is no reason for accepting jurisdiction where all those interested are non-residents, where the accident happened in another State, and where but for the fact that the decedent left a small proportion of property in this State the courts of this State would have had no jurisdiction.

I am, therefore, in favor of reversing this judgment upon the ground that if the courts of this State have jurisdiction because of the residence of the plaintiff, the administrator of the decedent, they will refuse to exercise that jurisdiction and the judgment should, therefore, be reversed and the complaint dismissed.

Clarke and Scott, JJ., concurred.

Judgment reversed and complaint dismissed, with costs. Settle order on notice. 
      
      See Gen. Stat. of N. J. 1188, §§ 10-12, as amd. by Laws of it. J. of 1897, chap. 58. Since amd. by Laws of N.’ J. of 1907, chap'. 149, and Laws of N. J. of 1908, chap. 322.— [Reí».
     