Whitford v. Panama Railroad — 16 N.Y. Super. Ct. 67

Majority

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William H. Whitford, administrator of the goods, &c., of Jeremiah N. King, plaintiff and appellant, v. The Panama Railroad Company, defendants and respondents.

Headnote

1. An action cannot be maintained in this state, by force of the statutes of 1847 and 1849, by the representatives of a deceased person to recover damages for causing the death of such person by wrongful act, default or neglect, when the act causing the death occurred without the state.

2. Those statutes, when they apply, make no difference between the cases in which the wrongful act or negligence involved also a breach of contract, and those in which it constituted a naked tort. A common carrier cannot, therefore, be held liable to such an action, where the death was caused without the state, upon the idea that he has broken his contract to carry safely.

3. By the common law no action would he for an injury to the person which caused death, and those statutes, in contravention of the common law, are special in their nature, designed to regulate the rights and responsibilities of persons on our own soil, and not to protect persons in foreign countries. They are not founded in any general maxims of jurisprudence of presumed universal application: and there is, therefore, no presumption that the law of the foreign country is the same.

4. And our statutes have no extra territorial force to define or declare the legal character or effect of an act done in such foreign state, or annex to it responsibilities which do not there attach to it.

5. A corporation created by the laws of this state, and by its charter authorized to construct and maintain a railroad in a foreign state, is no more liable, under the statutes above referred to, than a natural person would be for a wrongful act or neglect causing a death in such foreign state.

Such a corporation exercises the privileges conferred by the charter (if permitted to do so by the foreign state), subject to the responsibilities imposed by the laws of such foreign country, and our courts cannot presume that such statutes exist therein.

(Before Duer, Oh. J., and Woodruff, J.)

Heard, October 16th, 1857;

decided, April 24th, 1858.

Appeal from a judgment for the defendant, rendered at Special Term, May 19, 1857, before Mr. Justice Bosworth, on demurrer to the plaintiff’s complaint.

The complaint was as follows:

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City and county of Hew York, ss:

The complaint of William H. Whitford, administrator of all and singular the goods, chattels and credits which were of Jeremiah H. King, deceased, plaintiff in this action, respectfully shows to this court—

That the defendants are a corporation, incorporated by the name of The Panama Railroad Company, under and by virtue of an act of the Legislature of the State of Hew York, entitled “ An act to incorporate The Panama Railroad Company,” passed April 7th, 1849.

That the defendants, being such corporation, are, and at the time of committing the wrongs and grievances hereinafter complained of, were common carriers, and the owners of a certain railroad, with the cars, engines, machinery and equipments thereof, known by the name of The Panama railroad, and which said railroad is located on the Isthmus of Panama, in the republic of Hew Granada, and connects the town or city of Aspinwall, with the town or city of Panama, both in said republic. And that the said defendants, at the time of committing the wrongs and grievances hereinafter complained of, were and still are engaged in the business of transporting passengers and merchandise, as common carriers in their said cars, and over their said road, and that they then had and still have their principal office and place of business in the city, county and State of Hew York.

And the plaintiff further shows, that on or about the 20th day of April, 1856, at the said city of Hew York, the said Jeremiah H. King, depeased, took passage from Hew York to San Francisco,, by the way of Panama, and over the defendants’ said railroad, and paid his fare for such passage, and that on or about the 6th day of May, 1856, the said Jeremiah H. King, deceased, was such passenger in the cars, and upon the said railroad of the defendants, and was to be, and ought to have been, transported and conveyed in safety by the said defendants, from the said town of Aspinwall to the said city of Panama, on his way, with other passengers, from the city of Hew York to the city of San Francisco aforesaid, and that by reason .thereof the said defendants ought to have conveyed, or caused the said Jeremiah H. King, deceased, to be conveyed in their said cars, and over their said railroad on the aforesaid journey in safety; yet the said

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defendants, not regarding their duty in that respect, so carelessly, negligently and nnskillfully conducted themselves, that by and through the carelessness, neglect and unskillfulness of the said defendants, or their servants or agents, or from the want of due care or attention in that behalf, the said train of cars, in one of which was the said Jeremiah N. King, deceased, as such passenger, while in motion upon the track of the defendants’ said railroad, and when not far distant from the said town of Aspinwall, ran off, or were thrown off the track of said railroad, and was broken with great violence, and the said Jeremiah N. King was thrown from his place in one of said cars with great violence and was greatly injured and wounded, and divers bones of his body were broken, or he was otherwise bruised, mangled and injured, so that the said Jeremiah N. King, deceased, after receiving the said injuries in the manner above described, lingered for a short time in great pain, and then died at the said town of Aspinwall, on or shortly after the 6th day of May, 1856, and that his death was caused by the injuries above mentioned.

And this plaintiff further shows, that the said death of the said Jeremiah N. King, deceased, was caused by the wrongful act, neglect or default of the said defendants, or their servants or agents, and that the said wrongful act, neglect or default was such, that the said Jeremiah N. King, deceased, could have sustained an action against the said defendants for the damages occasioned thereby if he had not died.

And the plaintiff further shows, that the said Jeremiah N. King, deceased, left him surviving a widow named Mary King and six children, named respectively, Candace A., Joseph C., Ellen M., Mary A., Harriet E., and Henry W.; that the said widow is now advanced in life; that the eldest son is a cripple for life, and is incapable of earning his own support, and that the said Jeremiah N. King, deceased, did not leave sufficient property to maintain and educate the said children, and maintain the said widow in the manner in which he could have maintained and educated them if living; that the said widow and children were mainly dependent on the daily labor of said Jeremiah N. King, deceased, for their support and maintenance, and that the said widow and children, by his death, have been left in a state of comparative dependence and poverty.

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That the said Jeremiah N. King, deceased, at the time of his death, was forty-eight years of age, in good health, and was, by occupation a machinist, and enabled by his said occupation to earn about twelve hundred dollars per annum.

And the plaintiff further shows, that the said widow and next of kin of the said Jeremiah N. King, deceased, have sustained pecuniary damages, by reason of the death of the said Jeremiah N. King, deceased, to the amount of $5,000.

And the plaintiff further shows to this Court, that letters of administration were duly granted to the plaintiff by the Surrogate of the city and county of New York, on the 11th day of February, 1857, upon all and singular the goods, chattels and credits which were of the said Jeremiah N. King, deceased, which said letters of administration are in the possession of this plaintiff, and ready to be produced as this Court may direct.

Wherefore, this plaintiff claims that he is entitled, as administrator aforesaid, to recover from the said defendants' the damages as aforesaid; and he prays judgment against the said defendants for the sum of $5,000, besides the costs of this action.

The demurrer to this complaint was in the words following, viz.:

“ The defendant The Panama Railroad Company, by Eaton & Davis, attorneys, demurs to the complaint in the above entitled action; because it appears upon the face thereof.

“ Firstly.—That the Court has no jurisdiction of the subject of the action.

“ Secondly.—That the said complaint does not state facts sufficient to constitute a cause of action against the defendant.

“And the defendant states, as the grounds of objection to the said complaint, and of his demurrer, as follows :

“That it appears upon the face of said complaint that the death of the said Jeremiah N. King was caused by the wrongful act, neglect, or default of the said defendant, on the Isthmus of Panama, in the republic of New Granada, and out of the State and jurisdiction of New York, and that no statute or law is in force in the State of New York which gives to the plaintiff against the defendant any right of action, by reason of anything alleged in said complaint.” .

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This demurrer was heard at the Special Term, and the following opinion was there delivered:

“Bosworth, J.—The statutes of this state have not, ex profirió vigore, any extra territorial force. They-operate upon and affect persons only by reason of such acts as are done within its jurisdictional limits. They do not give a right of action for acts done out of its jurisdictional limits, when such acts would not create a right of action by the common law, and do not create one by the laws of the country in which they were committed.

“ The acts complained of did not, by the settled rules of the common law, as recognized and enforced in this state and England, create a right of action which would survive the decedent.

“ It is not alleged that any such right of action was created or existed by the laws of New Granada. No authority has been cited which justifies the court in presuming that a right of action existed there which is unknown to the common law.

“ The statute of December the 13th, 1847, as subsequently amended, creates a new right of action and furnishes a new remedy for certain acts which it specifies. These statutes cannot subject parties guilty of them, out of the territorial limits of the state, to any liability which would not exist had no such statutes been passed.

“If a contrary doctrine should prevail, persons while out of the state, for acts done out of it, and not only not inhibited, but expressly permitted by the law of the place, might, if subsequently found in this state, be subjected to a recovery for damages. (See Campbell, administratrix, &c., v. Rogers et al., vol. 9, Law Rep., N. S., 329, and cases there cited.)

“Judgment must be given for the defendants on the demurrer.”

From the judgment entered in conformity with the foregoing opinion, the plaintiff appealed to the General Term.

L. R. Marsh, for the plaintiff, appellant.

I. The defendants are admitted to be a domestic corporation, created under the laws of the State of New York. To the laws

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of this state they owe their origin, their existence, and are more essentially the subject of the law than a natural person.

Their existence, franchise, immunities and privileges are the gift of the law, and it would be an anomaly to hold that they are independent of or exempt from the control of the power that created them.

The acceptance of chartered rights and privileges by the defendants created an obligation and imposed a duty on the part of the defendants to hold themselves at all times amenable to the laws of the state, as then existing or as might subsequently be enacted.

II. The defendants are a domestic corporation, their local existence, their chief place of business, their domicil is in the city and State of Hew York, and if by the permission of the law they are enabled to transact business in other states or countries, it can only be subject to the effect and operations of the laws under which they are so acting. The defendants are not migratory or transitory in their character, but are supposed to be constantly within the jurisdiction of our law — to have no existence ; to be capable of no act; to have no corporate powers beyond or out of the jurisdiction of the power that created them.

A natural person has rights independent of law: he may remove himself from the jurisdiction of one state to another, he may transfer allegiance, and wherever he may go certain natural rights will follow him; but not so with that artificial being— a corporation.

III. The plaintiff is a resident administrator, appointed by the Surrogate of the city of Hew York. He is amenable here to the law of distribution. He does not come into Court to enforce the law of another state or country.

1. The statute in question is a remedial and. not a penal statute: everything must be done by the Courts in advancement of the remedy (3 Dow, 15; Sedgw. on Stat., 390).

2. The plaintiff in this action does not seek to enforce any penal statute of this state for acts committed elsewhere, nor yet does he seek to enforce in the Courts of this state the penal laws of another. The authorities relied on by the defendants falling within these two classes, are not applicable to this case.

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IV. This action is founded upon contract, and is brought to recover compensation or damages for the breach or default on the part of the defendant of that contract.

It is admitted that Jeremiah N. King, the decedent, purchased his ticket in the city of New York from the authorized agents of the defendants, for his passage from the city of New York, by way of the Panama railroad, to San Francisco, in the State of California.

1. By that-act (the purchase and sale of the ticket), there arose between the parties a contract or obligation by which the defendants agreed and undertook, in consideration of the payment of the purchase money by the said Jeremiah N. King, to transport him in safety from New York to San Francisco.

2. And for their breach of that contract or obligation they are properly responsible, according to the law of the place where made.

3. The Court must hold that such contract, in the absence of contrary evidence, was made and entered into by the defendants with special reference to the laws of the State of New York as existing at the time; and the statute in question was one of thelaws.

4. There is no principle better settled than the one applicable to this point, that parties making a “ contract must be presumed to be conusant of the laws of the place ” where they then are, “ and to expect that the contract is to be judged of, and carried into effect according to these laws.” (Story on Conflict of Laws, § 278: “ The law of the place is the law of the contract; ” Oh. J. Marshall, 20 Martin R.)

5. Arid the contract in this case, on the part of the defendants was, that if Jeremiah N. King would purchase a ticket from them, and pay the passage money therefor, they would transport him in safety from New York to San Francisco by the way of their railroad; and if he should be killed by any neglect of theirs, they would pay to his personal representatives such sum as compensation for his death as a jury might award, not exceeding $5,000.

V. It is claimed by the defence, that the New York statute, under which this action is brought, can have no application or force beyond the limits of the state enacting it.

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In answering this proposition, we premise that whatever the rule is, it is equally applicable to statute and common law. There is no distinction, in this respect, between those laws of a state which derive their force from legislative enactments, and those which have grown into law by immemorial prescription.

We may also state, that whatever the rule shall be found to be, it is the same between the different states of this Union, as between one of those states and a foreign country. (Sedgwick on Statutes, p. 74, and cases cited.)

1. How we grant that the laws of a state or country have no force propria vigore, in another state or country; the meaning of which we understand to be, that those laws cannot, of their own vitality and power, demand enforcement upon the territory and by the Courts of another state or country.

But the question, as here, is a very different one, when it arises in the courts of the country, whose laws are sought to be enforced, though for acts beyond the limits of that country. The question here, is not whether Hew York law can be enforced in Hew Granada (which is the question defendants argue), but whether Hew York Courts, on Hew York soil, will enforce Hew York law, as against this corporation, over which they have jurisdiction—for negligence in doing certain acts in Hew Granada, which it was authorized to do, solely by virtue of its charter granted by Hew York.

2. This corporation cannot escape from the jurisdiction of Hew York.

Its charter creates it a body corporate with power, and for the purpose of constructing and maintaining a railroad in Hew Granada. (Session Laws, 1849, p. 407, § 1.) Its directors are to be chosen in the city of Hew York (§ 3). It has power to hold lands in Hew Granada (§ 7).

The corporation, therefore, though it may reach its arm over into Hew Granada for certain authorized' purposes, yet cannot itself go there. It cannot get away from Hew York. Its origin was here; its charter is here; its head-quarters are here; its office here; its elections must be held here; it is never out of the jurisdiction of Hew York. A natural person may go away entirely; but this legal entity is fast. It may work by its agents abroad; itself is here. It stands in Hew York and reaches into

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New Granada, and it reaches there only by permission, and subject to the laws of New York.

A corporation can only act out of the state creating it by comity of such other state or country, and then can only do . such acts as its charter authorizes (13 Peters, 584, 592). Whatever life, therefore, it carries abroad it derives from the law of the state creating it. Shall it, then, walk across the state line, carrying all its power, but exempted from all responsibilities ? Would it not be a strange doctrine, that the State of New York can give permission and authority to this corporation to do certain acts in a foreign country, and yet have no power, as between itself and the corporation, to regulate the mode in which it shall perform those acts, and the terms of its liabilities for negligence in doing them. Suppose the statute under which this action is brought had been embodied- in the defendants’ charter, and made specifically applicable to it, can there be any doubt of the power of the Courts of this state to enforce it? But it is equally binding now, as it was the law of the state applicable to all corporations at the time of the act incorporating defendants. Suppose the defendants had committed in New Granada any of the acts which, by the law in this state applying to all corporations would forfeit its charter, could not such forfeiture be enforced here ?

3. When the question comes up in its own Courts, the state may regulate the rights, duties and obligations of its own citizens, wherever they may be. (Story on Conflict of Laws, § 540.)

If this is true as to natural persons, who have certain rights independent of the state, it is yet more applicable to a legal entity, dependent altogether upon the laws of the state for its very existence. (Story on Conflict of Laws, § 21.)

4. Laws of one state or country are often, by comity, considered to extend over foreign territory.

a. As in the case of ships. (Wheaton’s History Law of Nations, 723, 724.)

b. As in the case of marriages. (Wheaton’s Law of Nations, 724. )

c. As in cases of assignments of foreign bankrupts (except now when it interferes with the rights of citizens). (Story, § 37; 1 Seld.,-340, 344.)

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d. As in the case of corporations, which, though deriving life only by statute of the state creating them, may yet, so far as that statute permits, exercise their functions, where not opposed by positive law, in another state. (18 Peters, 584, 592.)

e. If it is true, as defendant contends, that the statutes of New York, the moment they overstep the state limits, have no extra territorial force, but are utterly powerless, then by what authority does the defendant, by force of New York statutes, carry on its functions in New Granada ?

If, as may be presumed from the fact that said corporation is not obstructed there, New Granada, by comity, permits this offspring of New York statute to exercise its powers there, it must also be presumed that that is subject to all the laws of New York affecting said corporation.

f. The laws in one state or country may not be presumed to be permitted, by the comity of another state or country, to extend over its territory, when the same are injurious to its people. E converso, where they are beneficial. The statute in question is certainly beneficial, requiring this corporation to beware of negligence in the discharge of its duty in New Granada.

D. B. Eaton, for the defendants (respondents).

I. Prior to the New York statutes of 1847 (Laws 1847, p. 575, ch. 450), and 1849 (Laws 1849, p. 888, ch. 256), giving an action to the next of kin, &c., of persons killed by negligence, under certain circumstances stated in those acts, the next of kin or personal representatives had not any right of action against those who should by negligence cause the death of a human being. No such right of action is recognised by the common law, or by the laws of New York.

Actio personalis moritur cum persona, &c. (Broom’s Legal Maxims, p. 558; Chitty on Pleadings, pp. 68, 69; Statute, 9 and 10, Viet., ch. 93, p. 531; Cory, &c., v. The Berks. R. R. Co., 1 Cush. Rep., 475 ; Pack v. The Mayor, &c., 3 Comst. R., 493, disapproving, 20 Wend., 210 ; Higgins v. Butcher, 1 Brownlow, 205; Stafford v. Drew, 12 N. Y. Legal Obser., May, 1854, p. 150; Worley v. The Cin., Ham. & Day., &c., Co., 1 Handy’s Oh. Rep.,

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481; Campbell v. Rogers, 2 Handy’s Oh. Rep.; 21 Barb., 245 ; 3 Duer, 637 ; 1 Cush., 475 ; 9 ib., 105, and 180; 10 S. and R., 31; 14 B. Monroe, 204.)

II. The before cited statutes of Hew York, on which alone an action could be maintained, had the death been caused within the State of Hew York, are exclusively inter-territorial in their application, and no action upon them can be maintained in Hew York, when the negligent acts charged as causing the death happened out of the State of Hew York, and in the dominions of a foreign state.

Ho question is made in this case, but a Court may presume the common law of a foreign state relative to absolute personal rights to be the same as in Hew York; and treating the invasion of such rights as a transitory cause of action, the Courts of Hew York may sustain a suit for redress; but what is denied is, that when the right of action only arises by statute in Hew York, that statute can be a foundation of an action, when the acts of negligence for which the statute gives the action did not occur in the State of Hew York. (Poison’s Law of Hations, 62 Eng. Law Lib., N. S. P., 23; Phillimore on International Law, 67 Law Lib., N. S. P., 356; Story on Conflict of Laws, §§ 7, 8, 18, 20, 29, 31, and 539, 540, 621; Hoyt v. Thompson, 1 Seld. Rep., 320, 340; Scoville v. Canfield, 14 Johns., 338 ; Hunt v. The Town of Pownal, 9 Vermont, 411, 417; Blanchard v. Russell, 15 Mass. Rep., 14 ; State v. Knight, 1 Taylor Term Rep., 65; Inhs. of W. Cambridge v. Inhs. of Lexington, 1 Pick. Rep., 506 ; Pickering v. Fisk, 6 Vermont Rep., 102; Commonwealth v. Clary, 8 Mass. Rep., 72 ; 1 Equity Cases, abridged, 288; Ferrett v. Bartlett, 21 Vermont, 184, 189; Holmon v. Johnson, 1 Cowper Eep., 341; Indiana v. Johns., 5 Ohio, 217 ; The Antelope, 10 Wheaton, 66, 223; Champion v. Janitzen, 16 Ohio, 91 ; Coodsell v. St. Louis, 16 Ohio, 178 ; Campbell, Sc., v. Rogers, 2 Handy’s Rep. of the Superior Court of Cincinnati, 1855 ; 6 Law Reporter, 329.)

By the Court.

—The liability of the defendants upon the facts alleged in the complaint is insisted upon, upon two principal grounds:

First. That the statutes of Hew York, giving an action where death is caused by the wrongful act, neglect or default of another,

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are of universal application, and give in this state a remedy against all who by a wrongful act, default or neglect have caused the death of any person, wheresoever the cause of death may have happened; and

Second. That those statutes are at all events applicable to every case of death so caused by a corporation created under our own statutes.

I. The question before us will be rendered more simple, if we consider the soundness of this second proposition before noticing the first, which we regard as the main branch of the inquiry.

In April, 1849, by act of the Legislature of the State of Hew York, William H. Aspinwall and twelve others, - and their associates, successors and assigns were constituted a body corporate by the name of “ The Panama Railroad Company,” for the purpose of constructing and maintaining a railroad with one or more tracks and all convenient buildings, fixtures, machinery and appurtenances across the Isthmus of Panama in the republic of Hew Granada, under the grant made by the said republic to William H. Aspinwall, John L. Stephens and Henry Chauncey, and of purchasing and navigating such steam or sailing vessels as may be proper and convenient to be used in connection with the said road, and for such purposes, all the necessary and incidental power is hereby granted to said corporation.

The charter then fixes the amount of the capital stock; prescribes the number of directors who shall manage the concerns of the company; provides that they shall be elected annually in the city of Hew York, and makes other provisions relative to voting, the payment of subscriptions, the by-laws, &c., for the management of its affairs, and by section 7, enacts, “It shall be lawful for the said corporation to contract with the said William H: Aspinwall, John L. Stephens and Henry Chauncey for the purchase of all the rights, privileges and immunities granted to them by the said republic of Hew Granada and for the purchase of the lands granted to them by the said republic, and to receive a conveyance of and hold the same in like manner as the said William H. Aspinwall, John L. Stephens and Henry Chauncey, now do or can do, and to lease or sell and convey any of such lands which the said corporation shall not deem it necessary to retain, and to build and ■ construct all such buildings, piers,

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docks, basins and harbors on the said lands as the said corporation may deem expedient, in like manner as the said William H. A spin wall, John L. Stephens and Henry Chauncey can do under the said grant.”

These are all of the provisions of the act which in any manner mention anything which is to be done or which may be done by the defendants upon the Isthmus of Panama; and there is not a word in the act which defines the mode or manner of the. defendants’ action within the limits of New Granada, or which prescribes the liabilities or responsibilities under which the corporation shall do the things which they are privileged to do under the grant from that republic.

It is hereupon insisted that as the defendants exist as a corporation only by virtue of the laws of this state, and hold their corporate franchise, immunities and privileges as a gift conferred by those laws, all their acts are done and all their business is transacted in subordination to all laws of this state. That in judgment of law all their acts are done within the limits of this state, because, in a legal sense, they have no existence and no power to act out of the jurisdiction of the power that created them; that, in a legal sense, they cannot leave this state, and therefore for every act, default or neglect they are responsible to all the consequences which the laws of this state impose. These suggestions, however specious or plausible, seem to us unsound in reason and untrue in fact.

First. These defendants do and may, by the express permission contained in the charter, act out of the limits of this state, and within the country of another independent government. The whole purpose and design of their incorporation was to enable them in their corporate capacity to do so. To construct and maintain a railroad on the Isthmus of Panama, is by no legal fiction to do an act within the limits of New York. It is quite true that the State of New York cannot confer power on the defendants to do this in a foreign country, without the consent of the government of that country, but it is not for New York nor her legal tribunals to say that either in theory or in fact, the defendants have not power to act in that country when the Legislature have unqualifiedly consented that they may do so. As between the two countries the act of the Legislature of

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this state is permissive only, but when the defendants have removed all obstacles, or received the sanction of Eew Granada, their power is full and complete, and they exist as a corporation, and act in the construction and maintenance of their railroad, in every sense, in that country, as truly as an individual citizen of Eew York would do. Whether in Eew Granada they have actually received corporate powers or enjoy corporate immunities is not at all material to the present question: Non constat but there they actas an association merely, under the fullest weight of joint liability as individuals; but that, if it were so, would not affect their present position in the courts of this state. In those tribunals they stand clothed with all necessary power, to go, by any of the instrumentalities by which they can act anywhere, and build and maintain their road in the republic of E"ew Granada; and in that they can no more be said to be acting in this state, than could one of our citizens who, residing here, should by his agents do the same thing in E"ew Granada.

In the maintenance of their railroad there, or in other words, in acting there, they do not put off the law of E"ew York, but execute the law itself; they do just what E"ew York law in express terms authorizes them to do. In a word, when this state has authorized the defendants to exercise their corporate functions in a foreign country, it is not for her courts, upon any refined theory respecting the nature of corporate existence, to say that their acts are nevertheless done within our state limits.

Second. The act of incorporation itself assumes that the Republic of Eew Granada have granted the necessary privilege, which privilege the defendants were to acquire; and the allegations in the complaint show that they are exercising the privilege which the charter intended they should acquire. We know of no principle or theory which forbids that our Legislature should confer upon an association of individuals purposing to carry on business in a foreign country, the privileges and immunities of a corporation in our own tribunals; and if this be done, it does not affect the nature of the acts done in such foreign country. It may affect the individual responsibility of the members of the association when proceeded against in our courts; but it does not make the whole responsible for ah act for which neither would be liable if no such corporate privilege were conferred. The

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business so authorized to be done is in every sense done in such foreign country, and done there by the sanction of our law. Whatever, therefore, may be said of the incapacity of our corporations to remove from the state, they may do what their charter authorizes them to do, where the charter authorizes them to do it. And to say that they must be deemed to do it here is to contradict the law itself, and so by theoretical construction to hold in the present case that the defendants are carriers of passengers by railroad in this state, when by the laws of this state they have no power to construct a railroad or carry passengers here at all. If there was any original principle or theory, having the force of law in this state, upon which our corporations can be said to be incapable of acting without this state, then the charter of these defendants has, as to them, repealed it.

Third. But there is no such principle in the sense in which the argument is used. Whatever the charter of our corporations authorizes them to do, they may do in theory and in fact, where-ever they please, unless such charter by its terms or by implication confines their operations within our limits. Much more may they do so when such authority is expressly given. Whether other countries will permit them to carry on their business within their limits is a question to be settled with the foreign government, and the legality of their acts done in such foreign countries, so long as they are not in contravention of their charter, are to be judged by the foreign law.

Fourth. It is true, as argued by the plaintiff, that the defendants hold their charter in subordination to our laws. But the charter itself is the foundation and.capital law under which they act.

It is also true that our laws relating in terms to corporations apply to and affect them in all their provisions.

So our general statutes apply to them and to their acts; but not otherwise than they do to natural persons. And to assume because the defendants hold their corporate franchises in subordination to our laws, that therefore they are liable for an act done in a foreign country, for which by the general rules of law they are not liable, is to beg the main question. The statute under consideration, in our judgment, most clearly applies alike to all our citizens. The granting of corporate privileges confers upon the grantee no responsibilities except those specified in the

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charter and such as are peculiar to corporations. All their other rights and liabilities, depending on the common law or the general statutes of the state, are enjoyed or shared in common with natural persons.

We have, therefore, no hesitation in concluding that if the present action could not be sustained under our statute against a natural person, it cannot be sustained against the present defendants. Their being a corporation created by our laws does not affect the question, and we pass therefore to the more general and main inquiry above first mentioned.

II. Whether the statutes of this state passed in 1847 and 1849 giving an action to the personal representative of a deceased, whose death is caused by the wrongful act, neglect or default of another, apply to a case in which the 'act causing such death occurred in a foreign country?

The question is thus confined to the force and operation of our statutes; the complaint in the action is framed upon the very terms and provisions of the statutes.

First. The plaintiff neither in his complaint nor in the argument of his appeal proceeds upon any idea that at the common law or upon any principles of universal justice or equity, any such action as the present could, if there were no such statute, be sustained in the courts of this state. For an injury causing death no action would lie in favor of the representatives of the deceased. To what extent compensation may be compelled by one to whom the deceased owed service, or who by reason of the injury and consequent death was put to expenses, it is not necessary to consider. Cases involving that question do not conflict with the rule that no cause of action was transmitted by the deceased to his representatives, for any personal injury. And no action would lie in favor of the next of kin; for this proposition, in its principle decided in England more than two hundred and fifty years ago (Yelv., 89); and recognized as law from that time onward in that country, and uniformly so held in this country, even if it were not conceded on the hearing, we should not deem it necessary to collect the authorities.

Second. It is also conceded that “the laws of a state or country have no force projprio vigore, in another state or country.” • It seems to us that this, in substance, puts an end to discussion.

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For if upon the general principles of law the killing of a human being by a wrongful act or negligence, gives to his representatives no cause of action, and if the statutes of Mew York have no operation in Mew Granada, and there is no evidence that such a killing there gives, a right of action, it would seem a necessary consequence that this Court cannot say that any such cause of action exists. These statutes are in contravention of the long settled principles of the law as recognized in this state. They are not declaratory but are special in their nature. They are not founded in any general maxims of jurisprudence of presumed universal application. And there is, therefore,-no presumption that the law of Mew Granada is the same.

It will hardly be denied that the consequences of any act done upon the soil of Mew Granada depend upon the laws of that republic. Contracts made and to be performed there are governed by those laws. An act done there which is lawful there, cannot be held illegal anywhere. Acts done or neglects occurring there, if they are justified by the law of that state,'are justified everywhere, and if these defendants are not liable there, they are not liable here, for as said in Campbell, adm’r, v. Rogers (19 Law Rep., N. S., 329), “if there is no right to recover for an alleged injury in the state where it is said to have been committed, there can be none in any other state.” And, on the other hand, if the state in which the alleged injury is committed has declared the consequences and defined the liability therefor, that law must govern. Let it be supposed that Mew Granada has by law, or in the grant under which the defendants act, prescribed "the cases in which the defendants should be liable for a death caused by the negligence of their servants, and the extent of that liability It would not, we think, be gravely insisted that they use their railroad under any other or greater responsibility than is so prescribed.

It is suggested that the proposition that the laws of Mew York have no force in a foreign state, only means that they cannot demand enforcement there, by the foreign Courts. This comes far short of its full meaning. The laws of Mew York cannot impart a legal character to acts done in a foreign state, or define their legal effect. Mor can they annex to them a responsibility which does not attach to them in that state.

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While, on the other hand, if it were shown that a right of action for acts done there, existed in such foreign state, by laws of that state not in conflict with our own, it is far from clear that such right of action would not be recognized and enforced in this state.

But it is further sought to maintain this action on the ground that it is founded on a contract to carry the deceased safely, and is brought to recover damages for the breach of that contract.

To this the same answers seem to us equally conclusive. ' The argument, in order to have any force, should show that for such a breach of contract the personal representatives could, without the aid of the statute, maintain an action, whereas no such action could be maintained after the death of the party, whether the alleged breach of contract caused the death or not. The maxim “ actio personalis moritur cum persona” is conclusive in this aspect of the case as well as when the action is in form ex delicto.

We cannot resist the conclusion that our statute is to be regarded, as giving a new action, and as creating a new cause of action, and not as continuing in favor of the representative a cause of action already existing. It is not damages sustained by the deceased which are to be recovered, but a “fair and just compensation with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of the deceased.”

And under this statute it is quite immaterial whether the wrongful act or default causing the death involved also a breach of contract or not. To say that a carrier of passengers, who had agreed to carry safely in New Granada, is liable in this state and under our statute, but that one whose act or negligence is not connected with any contract is not so liable, would be making a distinction wholly unwarranted by the terms or just construction of the statute. The statute gives the action whenever death is caused by the wrongful act, neglect or default of another, and whether the cause of death involved also a breach of contract or not, can make no difference in determining whether it applies to cases in which the death was caused in a foreign country.

We have been referred to the case of Doedt, admi'x, v. Wiswall et ail., ex’rs., decided in September last (15 How. Pr. R., 128), in. which it was held by a divided court that the cause of action,

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under the statute in question, could be prosecuted against the representatives of the wrong doer, if he was a common carrier of passengers, by treating the cause of action as arising on contract and the tort as waived. It is unnecessary to say anything more of that decision, whether we deem it correct or not, than has in substance been already said. The question whether our statute can apply at all when the death was caused in New Granada is not affected by it. But it seems to us that some of the observations of the court not only sustain our views but in some degree conflict with the decision itself. Mr. Justice Gould says, “The action itself never did and never could belong to the party killed.. It is a statute right of property, for which the statute gives an action.” If, then, the statute does not operate within the limits of New Granada, acts occurring there are not actionable anywhere by virtue of the statute.

The statute was designed to regulate and control the conduct of all persons and corporations within our own limits, and protect all upon our soil, and does not assume the protection of the rights of person over the whole world. Such a law no more operates to create a liability for acts done abroad than our laws for the protection of the Sabbath would affect the contracts or other acts of this corporation made or done in New Granada.

One consequence of sustaining the present claim, seems to us inevitable. If such actions can be brought in this state for the injury resulting from death caused by a wrongful act, wherever it is caused, then our courts are open to the prosecution of such actions in favor of all, wherever may be the residence of the parties. Eor if it be not true, that the liability of one who causes death by his act or negligence, depends solely upon the law of the place where such death was caused, then residents of Louisiana, Mississippi and every other state in the Union, nay residents of any country in the world, may have such action here although at home, the place of the occurrence, no liability whatever therefor existed. Our statute makes no distinction between residents and non-residents, and the only necessary condition will be that the defendant is found within our jurisdiction. We cannot think that such a construction of the statute is sound in principle, nor that our Legislature intended to create causes of action for the people of other countries out of acts done abroad,

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or impose liabilities for acts done in other parts of the world where the governments of such countries have not thought proper to do so.

We have thus noticed the especial grounds urged upon our attention,, in support1 of the appeal by which the force of the opinion of Mr. Justice Bosworth, at Special Term, is sought to be avoided, and we add, that we concur fully in the views there expressed by him.

. The judgment should be affirmed.

Judgment affirmed with costs.^[1]

* The able opinion of Mr. Justice Bacon, in Green v. The Hudson River Railroad Co., 28 Barb., 1 , and the authorities cited, bear upon some of the questions discussed in the foregoing case.