The plaintiff was bound to show, both by his complaint and proofs, that he had the right upon the law and the facts to maintain his action; and this is a case, therefore, of the failure of facts to constitute a cause of action, both in the complaint and the proofs, and the defendant could take advantage thereof at the trial." (See Lauria v. E.I. Du Pont DeNemours Co., 241 Fed. 687; Geoghegan v. Atlas Steamship Co., 3 Misc. 224; Whitford v. Panama R.R. Co., 23 N.Y. 465; Kiefer v. Grand Trunk R. Co., 12 App. Div. 28; affd., 153 N.Y. 688; Gurofsky v. Lehigh Valley R.R. Co., 121 App. Div. 126; affd., 197 N.Y. 517; Lichtenstern v. Augusta-Aiken R. E. Corp., 165 App. Div. 270; English v. N.Y., N.H. H.R.R. Co., 161 id. 831.) Where the complaint fails to state any cause of action whatever, the denial of a motion to dismiss for such insufficiency may be reconsidered upon appeal, for a judgment is not to be entered on such a complaint so challenged.
It is, of course, conceded that no cause of action existed under the common law and that the sole right to maintain an action to recover damages for the death of the intestate caused by the negligence of the defendant was created by and depends upon the provisions of the statute of New Jersey, where the accident occurred. ( Johnson v. Phœnix Bridge Co., 197 N.Y. 316, 319; Gurofsky v. Lehigh Valley R.R. Co., 121 App. Div. 126, 128; affd., 197 N.Y. 517.) In this State it is now held that the time prescribed by statute within which the action to recover damages for death caused by wrongful act may be commenced is not of the essence of the right to maintain the suit, but is subject to a statute of limitations.
A cause of action to recover damages for the death of a person does not exist at common law; it is wholly statutory ( Debevoise v. N.Y., L.E. W.R.R. Co., 98 N.Y. 377; Duncan v. St. Luke's Hospital, 113 App. Div. 68) and depends upon the statute of the State where the death was caused. ( Debevoise v. N.Y., L.E. W.R.R. Co., supra; Gurofsky v. Lehigh Valley R.R. Co., 121 App. Div. 126.) It is fairly to be inferred from the allegations of the complaint under consideration that the death occurred in the State of Georgia, and whether plaintiff is entitled to recover upon the facts set forth depends upon the construction to be put upon the statute of that State giving a right of action in case of death.