
    FROUNFELKER v. DELAWARE, L. & W. R. CO.
    (Supreme Court, Appellate Division, First Department.
    June 6, 1902.)
    Wrongful Death—Interest on Verdict.
    The right to recover interest in an action for wrongful death, where the cause of action arose under the laws of a foreign state, rested exclusively on its laws; and where, according to such laws, it was discretionary with the jury whether to allow interest or not, and it did not appear that the jury in such an action had added interest, it was error for the clerk, following the practice prescribed by Code Civ. Proc. § 1904, to add interest to the verdict and include it in the judgment.
    O’Brien, J., dissenting.
    Appeal from special term, New York county.
    Action by Sarah A. Frounfelker, as widow of John Frounfelker, deceased, against the Delaware, Lackawanna & Western Railroad Company. Verdict for plaintiff, and from an order denying defendant’s motion to modify the judgment entered thereon by striking therefrom the item of $5,553-33, being for interest on the verdict from the date of its rendition to the date of entry of judgment, defendant appeals.
    Reversed.
    See 62 N. Y. Supp. 840.
    Argued before HATCH, PATTERSON, O’BRIEN, and LAUGH-LIN, JJ.
    Hammond Odell, for appellant.
    Thomas P. Wickes,, for 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 tills 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. Railway Co., 12 App. Div. 28, 42 N. Y. Supp. 171, affirmed 153 N. Y. 688, 48 N. E. 1105. 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 proceedings 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. As 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 addition of interest by the •clerk was unauthorized.

It follows that the order should be reversed, with $10 costs and •disbursements, and motion granted, with $10 costs. All concur, except O’BRIEN, J., who dissents.  