
    Mary E. Johnson, as Administratrix, etc., of John E. Johnson, Deceased, Respondent, v. Phœnix Bridge Company, Appellant.
    Fourth Department,
    July 6, 1909.
    Negligence causing death, in foreign jurisdiction — conflict of laws — foreign statute governs — limitation of action essential ingredient — action in representative capacity — no recovery as individual — pleading — amendment substituting parties.
    Where the statutes of a foreign country confer a right of action for negligence causing death the action may be maintained in our courts, but the foreign statute controls except in mere matters of procedure.
    Where the statute creates a liability only where the action is brought within one year from the death, the limitation is an integral part of the cause of action and a condition precedent to its maintenance. It does not merely affect the remedy.
    An action brought by a person as. administrator is distinct from one brought as an individual.
    One who sues in an official capacity only cannot recover in his individual capacity, although he could have sued individually.
    Where a foreign statute authorizing a recovery for negligence causing death requires the action to be brought by the decedent’s consort or his ascendant or descendant relations, but the action is brought by the decedent’s administratrix in her official capacity, the plaintiff after the expiration of the time limited for the maintenance of such action is not entitled to amend the summons and complaint so as to change the action into one'brought in her individual capacity and as guardian ad litem of the decedent’s descendants. Such amendment sets out a new cause of action materially affecting the defendant’s rights, i
    Kruse and Williams, JJ., dissented, with memorandum.
    Appeal by the defendant, the Phoenix Bridge Company, from so much of an order of the Supreme Court, made át the Erie Special Term and entered in the office of the clerk of tlm county of Erie on the 30th day of 'March, 1909, as directs the amendment of the summons and complaint herein.
    
      Daniel J. Kenefick, for the appellant.
    
      Edwin L. Dolson, for the respondent.
   Spring, J.:

The defendant is a foreign corporation, and in the summer of 1907 was engaged in the construction of a bridge across the St. Lawrence river in the province of Quebec, Canada.' On the 29th day of August, 1907, the bridge collapsed, and John E. Johnson, an employee of said corporation, with many other fellow-workmen, was killed in the .catastrophe.

The decedent, who died intestate, residing in the city of Buffalo, left him surviving his widow, Mary E. Johnson, a father and two infant children. Letters of administration were issued to the plaintiff by the Surrogate’s Court of Erie county, and she commenced this action in her representative capacity in March, 1908, charge ing the defendant with negligence in. causing the death of her husband.

A right of action founded on the negligence of the defendant is conferred by the statutes of the province of Quebec, similar to that permitted in-our own State,'so that the action is maintainable here; (Wooden v. W. N. Y. & P. R. R. Co., 126 N. Y. 10.)

The foreign statute controls, however, except in mere matters of procedure. (Kiefer v. Grand Trunk R. Co., 12 App. Div. 28; affd., 153 N. Y. 688.)

The complaint, after setting out the facts upon which the liability of the defendant is based, alleged that the in téstate left a widow and two children as his next of kin, the appointment of the wife ás administratrix, that she is plaintiff in that capacity, and that she and the children “ were dependent upon the said deceased for their support.” The complaint contains the provisions of the Civil Code of Lower Canada, alleged to be the law of the province of Quebec, showing the existence of a statute similar to our own conferring a right of action for negligence, and the following (§ 1056) is quoted literally : “In all cases where the.person injured by the commission of an offence or a quasi-offencé dies in consequence, without having obtained indemnity or. satisfaction, his consort and his ascendant and descendant relations have a right, but only within a year after his death, to recover from the person who committed the offence or quasi-offence, or his representatives, all damages occasioned by such death. * * * In all cases no more than one action can be brought in behalf of those who are entitled to the indemnity and the judgment determines the proportion of such indemnity which each is to receive. These actions are independent, and do not prejudice the criminal proceedings to which the parties may be subject.”

It will be noted that the cause of action does not exist in favor of the administratrix", but must be in the names of the persons to whom the benefit accrues — in this case the widow, the children and the father.

In February, 1909, and more than one year after the death of the intestate, the plaintiff obtained an order at Special Term upon notice amending the summons by striking therefrom the clause showing that the action was commenced by the plaintiff as administratrix,, and adding other names thereto, so that the caption on the part of the plaintiffs now reads as follows: “Mary E. Johnson, individually and as guardian ad litem of Catherine Johnson and Mary A. Johnson, infants, and Henry E. Johnson.”

The complaint was also ordered amended to contain appropriate allegations conforming to the change of parties and eliminating the .allegations in the original complaint which were only proper if the action was in a representative capacity. We have, therefore, so far as the parties are concerned, a radically different action from the one originally commenced.

At the outset it is important to note that the phraseology of the statute quoted makes the one year within which the action may be commenced after the death of the person dying from the injuries a limitation upon the liability of the defendant, constituting an integral part of the cause of action and a condition precedent to its maintenance, and not merely affecting the remedy. .(Colell v. Delaware, Lackawanna & Western R. R. Co., 80 App. Div. 342; Hill v. Supervisors, 119 N. Y. 344; Hamilton v. Royal Ins. Co., 156 id. 327; The Harrisburg, 119 U. S. 199, 214.)

The bause of action in favor of the present plaintiffs had become extinguished, therefore, prior to the application to make them parties to the pending action.

Section 723 of the Code of Civil Procedure liberally provides for amendments to the summons or pleadings in furtherance' of justice and where «no change in the cause of action or defense is made and no serious detriment is to result to the opposing party. In construing the provisions of this section of the .Code, the courts in some cases have adopted a somewhat broad rather than a restricted interpretation. (Tighe v. Pope, 16 Hun, 180; Boyd v. U. S. Mortgage & Trust Co., 187 N. Y. 262.)

On the other hand, where' a new cause of action is-stated, or where the rights of the opposing party are to be materially affected to his: detriment, the amendment will not be granted. (Doyle v. Carney, 190 N. Y. 386; Licausi v. Ashworth, 78 App. Div. 486; Van Cott v. Prentice, 104 N. Y. 45, 57.)

In the case of Doyle v. Carney (supra) the plaintiff, as adminisr trator of the estate of his minor daughter deceased, sued to recover for services rendered by her. It developed on the trial that the services belonged to the father and that .an amendment to the complaint conforming to the proof was allowed at the close of the evidence, and a recovery was had. The judgment was reversed for this error. The court, in commenting upon the lack of power to allow the amendment, state this proposition: “ If the original plaintiff could not sustain the action, the statute does not authorize an amendment of the pleading, which adds the name of a person, who was, as to the original cause of action, a stranger in the eye of the law.” ,

It has frequently been held that an amendment will not be allowed substituting one defendant for another. (New York State M. Milk Pan Assn. v. Remington Agr. Works, 89 N. Y. 22; Shaw v. Cock, 78 id. 194; Bassett v. Fish, 75 id. 303, 315.)

In a case where an amendment to the complaint has been allowed substituting a new defendant and against whom the cause of action might have been barred by the Statute of Limitations, the defendant has not been deprived from pleading that defense. (Serrell v. Forbes, 106 App. Div. 482, 484; Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 646 ; opinion in full, 17 N. Y. St. Repr. 172.)

There is some apparent conflict in the authorities, due probably to the facts which have induced the particular decision rather' than to any disagreement in the legal principles which have. been enunciated.

We think there are two or three rules applicable to this case which are well established.

In the first place an action by a person in the capacity of administrator is distinct in personality from one by an individual. (Leonard v. Pierce, 182 N. Y. 431.)

The one suing in his official capacity may have a cause of action individually, yet if he fail to maintain the action as he has planned it, he cannot recover on the assumption that he has one individually like the one alleged in the complaint. He is a stranger to the action.

Again, if the plaintiff in this action had recovered a judgment, it would not be a bar to an action by the children, father or by her as consort of the decedent. (Case last cited; Davis v. N. Y., L. E. & W. R. R. Co., supra.)

The complaint in this action sets out all the facts necessary to allege a cause of action in her official capacity. She was not suing as consort and certainly she was not representing the next of kin. They alone could sue in their behalf. The Canadian statute is explicit in designating to whom the right of action inures, and, it would seem, all must join in one action, as only one is permitted. (Robinson v. Canadian Pacific R. Co., L. R. [1892] App. Cas. 481; Miller v. Grand Trunk R. Co. of Canada, L. R. [1906] App. Cas. 187.)

If the plaintiff had sued as consort, and after the lapse of one year from the death of the intestate the next of kin had applied to be made parties plaintiff in the action, I assume their application would have been denied. Their cause of action would have expired. Its life is not dependent upon the plea of the Statute of Limitations, which pertains to the remedy, but time is the essence of the cause of action.

The respondent relies upon Boyd v. U. S. Mortgage & Trust Co. (187 N. Y. 262). In that case the action was against the trust company as substituted trustee. The defendant was not liablé in that capacity. A motion was made at Special Term to amend the caption of the summons and complaint 'by striking out the words “as substituted trustee,” which was denied, and the order was reversed in the Appellate Division (84 App. Div. 466); and after trial the judgment and this order were reviewed by the Court of Appeals and both were affirmed. The amendment was sustained on the ground' that no new party was brought in. The court, however, in commenting upon the question used this significant language (at p. 269): “ If its effect was to bring in a new party in the fullest sense of that term — that is to say, a defendant who had never before been brought into court in this action for any purpose— then as to such defendant the action cannot be deemed to have been commenced until the service of the amended.' process, and such defendant would not be deprived of the benefit of its plea of the Statute of Limitations. As to new parties brought in by amendment a suit is begun only when they are brought in by the amendment and the service of the amended process. ‘If between the time of the commencement of the suit and the time when the new parties are brought in the period of limitation has expired they may plead the statute in bar of theirTiability, 'although the defense may not be available to the original defendants. (Shaw v. Cock, 78 N. Y. 194, 197.) ”

In the summons and complaint, as amended in this action, each of the plaintiffs is a new party. The next of kin were certainly not parties, and with, the facts so distinctly alleged showing' the plaintiff sued in her official capacity, stating no cause of action accruing to her as administratrix, we think the case is distinguishable from the Boyd case.

The order should be reversed, with ten dollars costs and disbursements, and the motion to amend denied, with ten dollars costs.

All concurred, except Williams and Kruse, JJ., who dissented in a memorandum by Kruse, J.

Kruse, J.

(dissenting):

Under the Quebec statute the plaintiff, Mary E. Johnson, who is the widow of the deceased, John E. Johnson, and her coplaintiffs seem to -have a right of action against the defendant to recover damages for the death of said deceased. But the action must be brought within one year after the death of the deceased, and no more than one action can be brought in behalf of those who are entitled to recover under the provisions of the statute, The proportion of the indemnity to which each is entitled is- determined in the action.

I agree with Mr. Justice Spring that the right of action may be enforced in the courts of our State ; that the'foreign statute controls except as to matters of procedure, and that the bringing of the action within one year after the death of the deceased, as provided in the Quebec statute, is a condition precedent attaching to the cause of action itself, and not a mere statute of limitation affecting the remedy. But I do not think that, because the plaintiff brought the action without her co plain tiffs joining with her originally, she is necessarily prevented thereby from recovering her damages. Nor do I think that the court is powerless to afford her relief by way of amendment of the summons and complaint, so as to show that she is prosecuting the action individually and not as administratrix of the estate of her deceased husband.

It is possible that - she, as well as her coplaintiffs, may encounter difficulties upon the trial in maintaining the action. It appears that while the action was commenced by her within one year after the death of her husband, the order amending the summons and complaint by adding her coplaintiffs as parties plaintiff to the /action was not made within one year. But I think that question need not be determined at this time.

The question here is whether the Special Term had authority to allow the amendment to the summons and complaint, and that question, I think, should be answered in the affirmative (Boyd v. U. S. Mortgage & Trust Co., 187 N. Y. 262) and the order affirmed.

Williams, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  