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jury to the plaintiff would not have oc- crossing at grade, to avoid striking an old curred.

man who was attempting to cross the tracks Utess v. Erie R. Co. 204 N. Y. 324, 97 at that point, but who was nevertheless N. E. 722, Ann. Cas. 1913D, 46; Brown v. struck by the train and killed. If the use New York C. R. Co. 34 N. Y. 404; Bowen v. of the brake for this purpose involved no New York C. R. Co. 18 N. Y. 408, 72 Am. negligence on the part of the persons operDec. 529; Lewis v. New York, L. E. & W. ating the train, at or about the time of the R. Co. 123 N. Y. 496, 26 N. E. 357; Wilds accident, of course the defendant could not v. Hudson River R. Co. 29 N. Y. 315; Wal- be held liable for the injuries inflicted upon dele v. New York C. & H. R. R. Co. 19 Hun, the plaintiff by the violent stop; as, for 69; Alberti v. New York, L. E. & W. R. Co. example, if, in order to avert destructive 118 N. Y. 77, 6 L.R.A. 765, 23 N. E. 35; collision with a sudden landslide immediateSalter v. Utica & B. River R. Co. 88 N. Y. ly in front of the locomotive, the engineer 42; Lomas v. New York City Realty Co. had been compelled to check the movement 111 App. Div. 332, 97 N. Y. Supp. 658; of the train at all hazards. In the present Maverick v. 8th Ave. R. Co. 36 N. Y. 378, 5 case, however, the contention of the plainAm. Neg. Cas. 93.

tiff is that the use of the emergency brake The happening of an accident which, in as it was used only became imperative bethe usual and ordinary course of things cause of the previous negligence of the enwould not happen with proper care, raises a gineer or fireman, or both, in failing seasonpresumption of negligence, and casts the ably to observe the approach of the old man burden on the defendant of explaining the who was killed, so that the train might accident, so as to relieve itself from lia- have been stopped and his life saved withbility if it can.

out having recourse to such violent means Loudoun v. 8th Ave. R. Co. 162 N. Y. 380, of stopping it. The accident occurred at 56 N. E. 988; Breen v. New York C. & H. Preston Hill crossing on the defendant's R. R. Co. 109 N. Y. 297, 4 Am. St. Rep. line between Camden and Canastota, about 450, 16 N. E. 60; Edgerton v. New York & a quarter of a mile south of Camden. There H. R. Co. 39 N. Y. 227;. Murphy v. Coney were no gates at the crossing, nor was any Island & B. R. Co. 36 Hun, 199; Coulahan flagman stationed there. The engine whisv. Metropolitan Street R. Co. 28 App. Div. tle was sounded about half way between 394, 51 N. Y. Supp. 137; Ludwig v. Metro- Camden station and the crossing; the evipolitan Street R. Co. 71 App. Div. 210, 75 dence is conflicting as to whether or not N. Y. Supp. 667; O'Flaherty v. Nassau Elec- the engine bell was rung. Whatever sig tric R. Co. 34 App. Div. 74, affirmed in 165 nals were given it is tolerably certain that N. Y. 624, 59 N. E. 1128; Jones v. Union R. they were not observed by an old man Co. 18 App. Div. 267, 46 N. Y. Supp. 321; named Durr, who was seen by the fireman Seybolt v. New York, L. E. & W. R. Co. to be moving slowly toward the tracks as 95 N. Y. 562, 47 Am. Rep. 75; Holbrook v. the train approached the crossing. He atUtica & S. R. Co. 12 N. Y. 236, 64 Am. Dec. tracted the attention of the fireman by the 502; Alberti v. New York, L. E. & W. R. slowness of his gait. “He was pushing a Co. 43 Hun, 423, affirmed in 118 N. Y. 77, lawn mower in front of him," says the fire6 L.R.A. 765, 23 N. E. 35; Gilmore v. Brook man, “and was going very slowly, with a lyn Heights R. Co. 6 App. Div. 117, 39 N. rake or something on his shoulder." Y. Supp. 417, 5 Am. Neg. Cas. 687; Caldwell Still further on in his testimony the firev. New Jersey S. B. Co. 47 N. Y. 282; Pal- man tells us: "He appeared to be old and mer v. Delaware & H. Canal Co. 120 N. Y. feeble. I watched him. I did not see him 170, 17 Am. St. Rep. 629, 24 N. E. 302; | look up. I can't say that I saw him indiRoberts v. Johnson, 58 N. Y. 613, 5 Am. cate in any way that he realized the apNeg. Cas. 200.

proach of our train. I said nothing to the

engineer then. · We both approached this Willard Bartlett, Ch. J., delivered the crossing; he coming slowly and we continuopinion of the court:

ing at our same speed.” This is an action to recover damages for The witness had previously said that the personal injuries alleged to have been sus-train was not then traveling more than 10 tained by the plaintiff through the negli- miles an hour. As it neared the crossing gence of the defendant. The plaintiff, while the fireman, perceiving that the old man was a passenger on a train of the defendant, was going right on, shouted to the engineer to severely injured in the knee by reason of stop. The engineer up to this time had not the sudden application of the emergency seen Durr at all. The warning came too brake by the engineer. The shock threw late. The emergency brake then the plaintiff against the seat in front of promptly and vigorously applied, but not in him with great violence. The brake was time to save the old man's life. applied as the train approached a highway As has already been suggested, the de

was

manner.

fendant was not responsible for the result. | that the plaintiff was entitled to have the ing injury to the plaintiff, whose knee was jury pass upon the question whether the badly hurt by impact with the seat in front defendant exercised due care toward him as of him, unless there was some negligence a passenger on the occasion of this accileading up to the use of the brake in this dent. The order of reversal should there

We think that the jury might fore be affirmed, with costs in all courts, readily find such negligence in the delay of and there should be judgment absolute the fireman to warn the engineer that there against the appellant upon its stipulation. was a man in danger ahead. The fireman said he saw Durr when he was an eighth of Hiscock, Chase, Cuddeback, Miller, a mile distant. Durr was then between the and Cardozo, JJ., concur. tracks of the Rome, Watertown, & Ogdensburg Railroad (which ran parallel with Ordered accordingly. those of the Lehigh at this point) and the tracks of the defendant. He was approaching the latter, apparently oblivious of the presence of any train thereon, yet the fire

NEW YORK COURT OF APPEALS. man allowed the train to run at least 500 feet further before he gave any cautionary RE ESTATE OF CARMINE D'ADAMO, warning to the engineer, who testifies that

Deceased, he applied the brake as soon as he heard

GIOVANNI D’ADAMO, Appt. the cry of the fireman, and it brought his engine to a stop within three car lengths, (212 N. Y. 214, 106 N. E. 81.) 150 or 160 feet. These facts certainly warrant the inference that prompt action on Executor and administrator relative the part of the fireman, such as the situa

of foreign subject. tion obviously called for, would have re

1. A resident brother of a resident forsulted in checking the onward movement of eigner is entitled to administer upon his the train without any such shock as ac-istration in case of intestacy must be grant

estate under a statute providing that admintually occurred, and perhaps in time to ed to the representatives of decedent enhave saved the old man's life.

titled to succeed to his personal property Upon the evidence in this record it might who will accept same, in the following orwell be inferred that the old man's death der: Husband or wife, child, father, mother, was due in part to his own carelessness; brothers,—where those having priority to but his contributory negligence would not him under the statute are nonresidents and affect the plaintiff's right of action as a pas

therefore disqualified. senger to recover on account of the defend Consul - right to administer. ant's negligence so far as it resulted in in

2. The statutory provisions for adminisjury to him. Nor is it necessary to invoke tration, of the state where a citizen of a the rule which requires a common carrier foreign country dies, are not superseded by to exercise the highest degree of care in try and the Federal government that, in

a provision of a treaty between that counthe conveyance of passengers to support a the event of any citizen of either country recovery by the plaintiff in this case; ordi- dying without will in the territory of the nary care demands that the railroad opera - other, the consul of the nation to which the tives managing the locomotive drawing a deceased may belong, shall so far as the passenger train shall instantly do every laws of each country will permit, pending thing in their power to avoid running down the appointment of an administrator, take a person in obvious peril upon the track charge of his assets, and, moreover, have ahead.

the right to be appointed as administrator

of such estate; and therefore a consul has It is argued that negligence cannot be

no prior right of administration over predicated of the fireman's omission to no- resident brother of decedent who is first in tify the engineer of Durr's presence near order of right under the laws of the state. the track sooner than he did because it has been held that an engineer is not bound to

(July 14, 1914.) stop his train the moment he sees a person upon the track, but may assume at least

A

PPEAL by petitioner from an order of in the first instance that he will leave the the Appellate Division of the Supreme track in time to escape injury (citing O'Brien v. Erie R. Co. 210 N. Y. 96, 103 N. of consul to administer estates, see notes to

Note. As to jurisdiction and power E. 895). That statement, however, is not Telefsen v. Fee, 45 L.R.A. 496, and Re Ghio, correct in respect to a person who is mani- 37 L.R.A.(N.S.) 549. The right of a nonfestly unconsciously moving into greater resident to act as administrator is considdanger by every step he takes.

ered in the note to Re Mulford, 1 L.R.A. We agree with the Appellate Division' (X.S.) 341.

a

Court, Fourth Department, affirming an Grima, 8 How. 490, 12 L. ed. 1168; Fredorder of the Surrogate's Court for Jeffer- erickson v. Louisiana, 23 How. 445, 16 son County denying a petition for the L. ed. 577. revocation of letters of administration Messrs. Countryman, Nellis, DuBois, granted to the Italian consul on the estate & McDermott, for respondent: of Carmine D'Adamo, deceased. Revereed. Neither appellant, as brother of intes

The facts are stated in the opinion, tate, nor Fred W. Mayhew, being “entitled

Mr. Gilbert S. Woolworth, for appel- to succeed to personal property” of inteslant:

tate, was entitled to letters of administraBy the provisions of New York law the tion; and the preliminary objections of petitioners, D'Adamo and Fred W. Mayhew consul were properly sustained and their are entitled to letters of administration. petition for the award of letters was prop

Lathrop v. Smith, 24 N. Y. 417; Re Wilderly denied. son, 92 Hun, 321, 36 N. Y. Supp. 882; Re Carpigiani v. Hall, 172 Ala. 287, 55 So. Lowenstein, 29 Misc. 722, 62 N. Y. Supp. 248, Ann. Cas. 1913D, 651; Re Patten, 80 819; Butler v. Perrott, 1 Dem. 9; Re Camp- Misc. 482, 142 N. Y. Supp. 452. bell, 123 App. Div. 212, 108 N. Y. Supp. It is within the exercise of the treaty281, affirmed in 192 N. Y. 312, 18 L.R.A. making power to provide for the adminis(N.S.) 606, 85 N. E. 392.

tration or intervention in the administraThe treaty with Italy does not entitle tion of the estates of foreign subjects by the Italian consul to letters of adminis- consuls. tration herein.

Rocca v. Thompson, 223 U. S. 317, 56 Re Logiorato, 34 Misc. 31, 69 N. Y. Supp. L. ed. 453, 32 Sup. Ct. Rep. 207; McEvoy 507; Lanfear v. Ritchie, 9 La. Ann. 96; v. Wyman, 191 Mass. 276, 114 Am. St. Rep. 5 Moore, Int. Law Dig. 122, 123; Rocca v. 601, 77 N. E. 379; Austro-Hungarian ConThompson, 223 U. S. 317, 56 L. ed. 453, 32 sul v. Westphal, 120 Minn. 122, 139 N. W. Sup. Ct. Rep. 207; Cushing, Atty. Gen. 300; Re Holmberg, 193 Fed. 260; Re Scu1856, 8 Ops. Atty. Gen. 98; Consular Reg. tella, 145 App. Div. 156, 129 N. Y. Supp. ulations of 1896, | 409, 7 Ops. Atty. Gen. 20; Re Lobrasciano, 38 Misc. 415, 77 N. Y. 274; U. S. Rev. Stat. § 1709, Comp. Supp. 1040; Carpigiani v. Hall, 172 Ala. Stat. 1913, § 3162; Foreign Relations 287, 55 So. 248, Ann. Cas. 1913D, 651; Re (V. S.) 1894, p. 366; Austro-Hungarian Lombardi, 78 Misc. 689, 138 N. Y. Supp. Consul v. Westphal, 120 Minn. 122, 139 1007. N. W. 300.

The most-favored nation clause of the The most-favored nation clause in the treaty with Italy entitled the Italian consul treaty with Italy does not entitle the Ital. to be appointed administrator on the esian consular officers to demand whatever tates of Italian subjects dying intestate, privileges may be accorded consular officers that right being granted to the Swedish under the convention of March 20, 1911, be consul under the treaty of Sweden with tween the United States and Sweden. the United States.

5 Moore, Int. Law Dig. 257-319; 6 Ops. McEvoy v. Wyman, 191 Mass. 276, 114 Atty. Gen. 148; Whitney v. Robertson, 124 Am. St. Rep. 601, 77 X. E. 379; Gandolfo U. S. 190, 31 L. ed. 386, 8 Sup. Ct. Rep. v. Hartman, 16 L.R.A. 277, 49 Fed. 181; 456.

Re Tiburcio Parrott, 6 Sawy. 349, 1 Fed. A treaty giving to foreign consuls the 481; Re Lobrasciano, 38 Misc. 415, 77 right of administration on the estates of N. Y. Supp. 1040; Rocca v. Thompson, 223 their nationals dying intestate in the U. S. 317, 56 L. ed. 453, 32 Sup. Ct. Rep. United States would be void in that respect 207; Re Baglieri, 137 N. Y. Supp. 175; as being in excess of the constitutional Austro-Hungarian Consul v. Westphal, 120 powers of the treaty-making authority and Minn. 122, 139 N. W. 300; Re Jarema, 137 à violation of the rights reserved to the N. Y. Supp. 176; Re Riccardo, 79 Misc. states under the Constitution. Calder v. Bull, 3 Dall. 388, 1 L. ed. 649; Misc. 689, 138 N. Y. Supp. 1007.

371, 140 N. Y. Supp. 606; Re Lombardi, 78 King v. American Transp. Co. 1 Flipp. 1, Fed. Cas. No. 7,787; Nathan v. Louisiana,

The provisions of article XIV. of the 8 How. 82, 12 L. ed. 992; Ohio L. Ins. &

extended under the

Swedish treaty, as T. Co. v. Debolt, 16 How. 428, 14 L. ed. favored nation clause of the Italian treaty, 1002; Head Money Cases (Edye v. Robert- authorizing the appointment of consuls as son), 112 U. S. 599, 28 L. ed. 804, 5 Sup. administrator, is the “supreme law of the Ct. Rep. 247; Ballock v. State, 73 Md. 8, land” and supersedes the state laws on the 8 L.R.A. 671, 25 Am. St. Rep. 559, 20 Atl. same subject. 184; Federalist, No. XXXIII;

License

Ware v. Hylton, 3 Dall. 199, 1 L, ed. Cases, 5 How. 613, 12 L. ed. 305; Thomp- | 568; Re Tiburcio Parrott, 6 Sawy. 349, 1 son's Succession, 9 La. Ann. 196; Mager v. Fed. 481; Re Scutella, 145 App. Div. 156,

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129 N. Y. Supp. 20; Hauenstein v. Lyn- were refused to him, and as it stands toham, 100 U. S. 483, 25 L. ed. 628. day, is qualified to act, unless his lack of

The words in article XIV. of the Swedish interest in the estate disqualifies him. We treaty, “so far as the laws of each country think that it does not. will permit," did not limit the right of The law which was in force when this consuls to be appointed as administrators. proceeding was determined by the surro

Re Baglieri, 137 N. Y. Supp. 175; Re gate, and which will remain in force until Jarema, 137 N. Y. Supp. 176; Re Mada- September 1, 1914, was $ 2660 of the Code loni, 79 Misc. 653, 141 N. Y. Supp. 323; of Civil Procedure, as amended by chapter Re Riccardo, 79 Misc. 371, 140 N. Y. Supp. 403 of the Laws of 1913.* We think that 606; Re Lombardi, 78 Misc. 689, 138 N. ¥. the proper construction of that section is Supp. 1007; Ex parte Anderson, 184 Fed. established by the case of Lathrop v. Smith, 114; Tucker v. Alexandroff, 183 U. S. 424, 35 Barb. 64, id. 24 N. Y. 417. That case 437, 46 L. ed. 265, 270, 22 Sup. Ct. Rep. 195; Shanks v. Dupont, 3 Pet. 242, 7 L. ed. construed a section of the Revised Statutes 666; Hauenstein v. Lynham, 100 Ú. S. 483,.2 Rev. Stat. p. 74, § 27), which was later 25 L. ed. 628; Geofroy v. Riggs, 133 U. S. incorporated as § 2660 into the Code of 267, 33 In ed. 645, 10 Sup. Ct. Rep. 295. Civil Procedure (Laws 1893, chap. 686).

Some slight verbal changes were made at Cardozo, J., delivered the opinion of the that time in the process of revision. court:

Whether these changes of form effected a Carmine D'Adamo, a citizen and subject change of meaning is a question in respect of the Kingdom of Italy, died in this state of which there has been a conflict of dein December, 1912. His residence was in cision in the courts below. Re Wilson, 92 the town of Le Ray in the county of Jef- Hun, 318, 36 N. Y. Supp. 882; Re Campferson. He left a wife, a child, a father, bell, 123 App. Div. 212, 108 N. Y. Supp: and a mother, who resided in Italy. He 281; Re Wolff, 161 App. Div. 255, 146 left brother, Giovanni, a resident of New N. Y. Supp. 495; Re Lowenstein, 29 Misc. York. Letters of administration upon his 722, 62 N. Y. Supp. 819; Re Seymour, 33 estate were granted by the surrogate to Misc. 271, 68 N. Y. Supp. 638; Re Patten, the Italian consul. Thereafter Giovanni 80 Misc. 482, 142 N. Y. Supp. 452. We D'Adamo and one Fred W. Mayhew, the hold that the meaning remained the same, treasurer of Jefferson county, joined in a and that the case of Lathrop v. Smith, petition that the letters granted to the supra, is applicable to g 2660 of the Code Italian consul be revoked, and that the as it was to the Revised Statutes. We petitioners be appointed administrators in content ourselves with stating our concluhis stead. This application was denied by sion in this respect, because of amendments the surrogate, and the order was affirmed which have this year been adopted by the at the appellate division. The county legislature. By chapter 443 of the Laws treasurer has acquiesced in that decision. of 1914, which will take effect on SeptemThe brother, Giovanni D'Adamo, alone ap- ber 1, 1914, § 2660 of the Code of Civil peals.

Procedure has become § 2588, and radical The case presents two questions: The changes have been made in it. The result one as to the interpretation of the statutes of these amendments will be to establish of our own state; the other as to the inter- a new rule hereafter. Discussion of the pretation of treaties between the United reasons for our construction of the old rule States and foreign nations. The first ques- would, therefore, serve no useful purpose. tion is whether, under the Code of Civil Confining ourselves to the statute as it Procedure as it stood in June, 1913, when read before the amendment of this year, the order under review was made, the we hold that unless a treaty stands in the brother of the dead man had the right of way, the brother, Giovanni D'Adamo, is administration. The second question is

entitled to the grant of letters. whether the treaty between the national

2. This brings us to our second question: government and Italy, construed in connection with a later convention with Sweden, $ 2660. When entitled to letters of adminhas taken the right away.

istration. 1. It is urged in support of the surro

Administration in case of intestacy must gate's decree that because the decedent's be granted to the relatives of the deceased brother was not entitled to share in the entitled to succeed to his personal property,

who will accept the same, in the following estate, he was not entitled to administer

order: The decedent left a wife and an

1. To the surviving husband or wife. infant child in Italy. His entire estate

2. To the children. belongs to them. They are not qualified 3. To the father. to act as his administrators. The brother, 4. To the mother. under the law as it stood when letters 5. To the brothers.

upon it.

Is there any treaty provision that confers | Federal government could constitutionally, a prior right on the Italian consul? By in the exercise of the treaty-making power, article 17 of the Consular Convention of supplant the commonwealth

laws regu1878 between the United States and Italy, lating the administration of estates. 223 “the respective consuls general, consuls, U. S. at page 329. Assuming such a power, vice consuls and consular agents, as like the court held that “there was no purpose wise the consular chancellors, secretaries, in the Argentine treaty to take away from clerks, or attachés, shall enjoy in both the states the right of local administration countries, all the rights, prerogatives, im- provided by their laws, upon the estates munities and privileges which are or may of deceased citizens of a foreign country, hereafter be granted to the officers of the and to commit the same to the consuls of same grade, of the most favored nation." such foreign nation, to the exclusion of [20 Stat. at L. 732.]

those entitled to administer as provided It is said by the Italian consul that the by the local laws of the state within which Consular Convention of 1911 between the such foreigner resides and leaves property l'nited States and Sweden, confers upon at the time of decease.” 223 U. S. 334. Swedish consuls the right to administer, to The court pointed out that the only privthe exclusion of all other persons, upon the ilege conferred was one of intervention, and estates of their nationals dying in the that by this was meant the right "to enter United States, and it is insisted that under into a proceeding already begun, rather the most favored nation clause a like priv- than the right to take and administer the ilege must be held to be enjoyed by the property.” In developing this argument representatives of Italy. We must there. Mr. Justice Day, who spoke for the court, fore determine whether the convention said: “Had it been the intention to comwith Sweden, properly construed, confers mit the administration of estates of citiupon the representatives of that govern- zens of one country, dying in another, ment the exclusive right asserted.

exclusively to the consul of the foreign naThe extent to which our local law of ad- tion, it would have been very easy to have ministration has been displaced by foreign declared that purpose in unmistakable treaties has been, for some years, an un- terms." settled question in this state.

The repre

And he cited as instances of such a pursentatives of Italy and of other nations at pose a treaty with Peru, made in August, first based their pretensions upon article 1887 (25 Stat. at L. 1444, art. 33), but 9 of the Argentine treaty of 1853 (10 Stat. I terminated in November, 1899, and a conat L. 1009), which gave to the consular vention with Sweden proclaimed in March, officers of the respective countries the right 1911, after the decision by the courts of "to intervene in the possession, adminis. California of the case which he was then tration, and judicial liquidation of the es- reviewing. These observations with refertate of the deceased, conformably with the ence to the effect of the convention with laws of the country, for the benefit of the Sweden are plainly obiter; but they have creditors and legal heirs.".

been seized hold of as supporting the conThe effect of that treaty was the subject tention that since the adoption of that conof conflicting decisions, both by the surro- vention, in March, 1911, the consuls of gates' courts and the appellate division in Sweden, and hence the consuls of Italy, this state, and by courts of other states. have the exclusive right to administer Re Logiorato, 34 Misc. 31, 69 N. Y. Supp. upon the estates of their respective citi507; Re Fattosini, 33 Misc. 18, 67 N. Y. zens dying in the United States. It has Supp. 1119; Re Lobrasciano, 38 Misc. 415, been so held by the appellate division in 77 N. Y. Supp. 1040; Re Scutella, 145 App. this case and by the surrogates' courts in Div. 156, 129 N. Y. Supp. 20; Re Wyman, other cases. Re Baglieri, 137 N. Y. Supp. 191 Mass. 276, 114 Am. St. Rep. 601, 77 175; Re Lombardi, 78 Misc. 689, 138 N. E. 379; Re Ghio, 157 Cal. 552, 37 L.R.A. N. Y. Supp. 1007; Re Riccardo, 79 Misc. (N.S.) 549, 137 Am. St. Rep. 145, 108 Pac. 371, 140 N. Y. Supp. 606; Re Madaloni, 79 516. The question came before the Su- Misc. 653, 141 N. Y. Supp. 323. The conpreme Court of the United States in Rocca | trary has been held in a well-considered v. Thompson, 223 U. S. 317, 56 L. ed. 453, ( opinion by the supreme court of Minne32 Sup. Ct. Rep. 207. The supreme court sota. Austro-Hungarian Consul v. Westof California sustained the prior right of phal, 120 Minn. 122, 139, 141, 139 N. W. the public administrator, and refused to 300. issue letters of administration to the Ital- The language of the treaty which is said ian consul. 157 Cal. 552. The Supreme to have brought about this sweep change Court of the United States upheld the re- must be kept before us. It is as follows fusal. In reaching that conclusion, the (Convention between United States and court left open the question whether the Sweden, June 1, 1910, article 14):

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