
    Sarah A. Frounfelker, as Widow of John Frounfelker, Deceased, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    
      Action to recover damages, under the Pennsylvania statute, for a husband’s death — interest on the verdict cannot be added by the clerk.
    
    Where an action to recover damages resulting from the death of the plaintiff’s husband is brought in the State of New York under a statute of the State of Pennsylvania, and upon the trial of the action it appears that the Pennsylvania statute does not contain any express provision relating to interest upon the verdict, and that in that State it is discretionary with the jury whether or not to include interest in their verdicts, the clerk of the court has no power to add interest to the amount of the verdict and include it in the judgment in accordance with the practice prescribed by section 1904 of the Code of Civil Procedure.
    Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from an order of the Supreme Court, made at the New York Special Term, bearing date the 7th day of February, 1902, and entered in the office of the clerk of the county of New York, denying the defendant’s motion to modify a judgment in favor of the plaintiff, entered in said clerk’s office on the 17th day of January, 1902, upon the verdict of a jury, by striking therefrom the item of $5,553.33, the interest on the verdict from the date of its rendition to the date of the entry of the judgment.
    
      Hammond Odell, for the appellant.
    
      Thomas JP. Wiches, for the respondent.
   Laughlin, J.:

The plaintiff’s cause of action to recover for the death of John Frounfelker was given by the statute of the State of Pennsylvania, but the action.was brought in the courts of this State. The Pennsylvania statute does not contain any express provision relating to interest, but it appears by affidavits that the courts permit juries, in their discretion, to include interest in their verdicts. In this case it does not appear whether or not the court so instructed the jury, nor does it appear whether the jury added interest by way of damages, but after the verdict the clerk, following the practice prescribed by section 1904 of the Code of Civil Procedure, which relates solely to causes of action arising under the statute of our State, added this interest and included it in the judgment. This, we think, was error. The plaintiff having elected to bring her action in our courts, the course of procedure prescribed by the practice of the courts of the lex fori is of course to govern; but her right of recovery, whether of damages or interest, rests exclusively upon the statutory law of the foreign jurisdiction. (Kiefer v. Grand Trunk, Ry. Co., 12 App. Div. 28; affd., 153 N. Y. 688.)

The right to recover interest in such cases, where the cause of action arises under the laws of this State, rests upon the express provisions of our statute, whereas in Pennsylvania no such right is expressly conferred. Under the practice in Pennsylvania, as indicated by the affidavits presented, it would appear that it is discretionary with the jury whether to allow interest or not. The plaintiff, therefore, seeks by proceeding under section 1904 of our Code of Civil Procedure, to evade the hazard incident to that discretion and to claim as a matter of right what she could not claim as a matter of right had she brought her action in the courts of Pennsylvania.

At common law it was required that the judgment entered on a verdict should conform strictly to the verdict. A.s has been seen, the statute of Pennsylvania, with respect to the amount of damages, only authorizes entry of a judgment for the amount of the verdict. The case clearly falls within the principle of the Kiefer case, and the addition of interest by the clerk was unauthorized.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Patterson and Hatch, JJ., concurred; O’Brien, J., dissented.

Order réversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  