Opinion
September, 1905.
F. De Lysle Smith, for the appellant.
Melville J. France [ George V.S. Williams with him on the brief], for the respondent.
This action was brought to recover damages alleged to have been sustained by the plaintiff in consequence of the defendant's negligence. The injury complained of occurred in defendant's factory, located at Bristol, in the State of Connecticut, on the 12th day of June, 1902, at which time the plaintiff was a resident of that State.
In the 6th subdivision of his complaint the plaintiff alleges "that previous to the commencement of this action he caused to be served upon the defendant notice to it, in writing, stating the time, place and cause of the injury alleged herein, as required by chapter 600 of the Laws of 1902." He also alleged in other subdivisions of his complaint facts sufficient to constitute a common-law cause of action. The appellant contends that by the form of his complaint plaintiff is shown to have chosen his remedy and brought his action under the Employers' Liability Act ( supra), and cannot recover on his common-law right of action, and it appearing that the notice alleged to have been given was not served within 120 days after the injury was sustained, a recovery is precluded under the statute. I do not think there is any force in this argument. The statute gives no cause of action for an injury sustained in the State of Connecticut by a resident of that State against one of its corporations whose negligence is alleged to have caused the injury, and the 6th subdivision was properly eliminated at the commencement of the trial as surplusage. Had the cause of action been within its provisions, the plaintiff might have alleged both his statutory and his common-law right of action and recovered upon either, and could not have been compelled to elect between the two before trial. ( Mulligan v. Erie Railroad Co., 99 App. Div. 499; Monigan v. Erie Railroad Co., Id. 603.) The case of Burdick v. Freeman ( 120 N.Y. 426), cited by the appellant as an authority for the contention that the trial court was without jurisdiction, does not sustain that contention. In that case both parties to the action were residents of the State of Pennsylvania, while in the case at bar the plaintiff at the time the action was commenced resided in the State of New York. The case, however, is an authority sustaining the proposition that the courts of this State have jurisdiction of the subject-matter involved in a common-law right of action to recover damages for personal injury sustained in another State through the negligence of a resident of that State, although the plaintiff at the time of the injury also resided there.
The appellant seriously contends that the verdict of the jury was against the weight of the evidence; but after a careful examination of the record before us we are of opinion that there was sufficient evidence to sustain the finding of the jury. Defendant's legal rights were carefully guarded upon the trial; the case was fairly submitted to the jury by the learned trial justice, and no exceptions were taken which warrant our interference with the result.
It is conceded that the extra allowance of costs was granted without authority, and this amount must be deducted from the judgment.
The judgment should be modified by deducting therefrom the amount of the extra allowance, and as so modified affirmed, together with the order appealed from.
BARTLETT, WOODWARD, JENKS and MILLER, JJ., concurred.
Judgment modified by striking out the provision for an extra allowance, on the ground of want of authority in the trial court to grant the same, and judgment as modified and order unanimously affirmed, without costs.