This is an action to recover damages caused by appellants' testator in negligently causing personal injury to respondent in an automobile accident which occurred in the State of Virginia. At the time both were residents of this State. Appellants' testator thereafter died while a resident of this State and his last will was probated in this State and appellants duly qualified as executors thereof.
The complaint alleges that a statute of the State of Virginia provides that an action to recover damages under such circumstances survives the death of a wrongdoer and is maintainable against his personal representatives. If the accident had happened in this State, a cause of action would not survive the death of the alleged tort feasor.
The sole question present is whether the courts of this State will enforce the cause of action given by the statute of Virginia against the representative of the estate of the deceased. The exact question has never been passed upon by this court. There are conflicting decisions in the Appellate Divisions. The Fourth Department, in Domres v. Storms (236 App. Div. 630), has decided that the action is maintainable. The opposite conclusion was reached in the Second Department in Clough v. Gardiner (194 App. Div. 923) and by the Surrogate in Matter of Killough (148 Misc. Rep. 73).
The alleged wrongful conduct of appellants' testator created a cause of action in favor of the respondent in *Page 386 Virginia. That cause of action is not penal in its nature. It constitutes a transitory cause of action and a property right which will be enforced by the courts of this State unless such cause of action is contra to our public policy and "in its nature offends our sense of justice or menaces the public welfare." (Loucks v. Standard Oil Co., 224 N.Y. 99, 110.)
The principle was stated by Chief Justice WHITE in Bond v.Hume (243 U.S. 15, 21): "It is elementary that the right to enforce a foreign contract in another foreign country could alone rest upon the general principles of comity. But elementary as is the rule of comity, it is equally rudimentary that an independent state under that principle will not lend the aid of its courts to enforce a contract founded upon a foreign law where to do so would be repugnant to good morals, would lead to disturbance and disorganization of the local municipal law, or in other words, violate the public policy of the state where the enforcement of the foreign contract is sought."
It is undoubtedly true that courts will not enforce foreign causes of action when to do so would be contrary to the public policy of the forum. It is not every difference upon some debatable question of State policy between the law of the forum and the law of the foreign State creating the cause of action which will justify a refusal to enforce the cause of action in the forum. "There is a growing conviction that only exceptional circumstances should lead one of the states to refuse to enforce a right acquired in another." (Loucks v. Standard Oil Co.,supra, at p. 113.) That is particularly true in cases where the cause of action arose in a sister State rather than in a foreign country.
More than one-half of our sister States which were formerly governed by the rule of the common law, that such an action did not survive, now have statutes similar to that of Virginia. To refuse to enforce a vested right created by such a statute of one of those sister States *Page 387 upon the ground that its enforcement would be "repugnant to good morals, would lead to disturbance and disorganization of the local municipal law," or that such a statute "in its nature offends our sense of justice or menaces the public welfare," would constitute an assumed virtue and superiority which cannot be justified and which we should at least hesitate to announce.
The desirability of a close union of the States and the enforceability of the laws of each in every other is evidenced by the full faith and credit clause of the Federal Constitution. We conceive the controlling public policy to be that the courts of each State shall give effect to all valid causes of action created by the laws of another State except possibly in extreme cases when to do so would, in the words of former Chief Judge CARDOZO, "offend our sense of justice or menace the public welfare."
Under our common law, this cause of action would not survive the death of the tort feasor. By section 120 of the Decedent Estate Law it is provided that certain tort actions affecting property shall survive and may be maintained against the personal representative of the wrongdoer. It also provides: "This section shall not extend to an action for personal injuries."
Personal injury, as defined by section 37(a) of the General Construction Law (Cons. Laws, ch. 22), includes an "injury to the person either of the plaintiff, or of another." (Hegerich v.Keddie, 99 N.Y. 258.)
The section had the effect of changing the common law governing the survival of actions for wrongful injury to property, but did not change the rule in regard to the survival of a cause of action to recover damages for wrongfully causing the death of a person.
Does the fact that to that extent we retain the rule of the common law prevent our courts from giving effect to the statute of Virginia which has changed that rule? We think not. We recognize the fact that the courts of certain States entertain a different view and insist upon *Page 388 similarity of statutes. The current of authority favors the enforcement in courts of the forum of vested rights acquired in a foreign State. (26 Mich. Law Review, 439; 18 Cornell Law Quarterly, 432, 434; 12 Minnesota Law Review, 289; Walsh v.N.Y. N.E.R.R. Co., 160 Mass. 571; Beach, Uniform Interstate Enforcement of Vested Rights, 27 Yale Law Journal, 656; Loucks v. Standard Oil Co., supra; Rick v. Saginaw Bay Towing Co.,132 Mich. 237.)
"The tendency of modern decisions is toward a broader comity in the enforcement of rights created by the legislatures of sister states." (Brown v. Perry, 104 Vt. 66; 77 A.L.R. 1294.)
"We are not at liberty to refuse the enforcement of the foreign law in order to suit our own view of what is fair and right under the stated circumstances. Our courts `do not close their doors unless help would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common weal.'" (Reilly v. Pepe Co.,108 Conn. 436, 446.)
"We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home." (Loucks v. Standard Oil Co., supra, at p. 111.)
The fact that there is no statute upon the subject in the forum and that the common law does not afford a remedy does not justify the courts of the forum in refusing to enforce a right acquired in a sister State. (Loucks v. Standard Oil Co., supra;Huntington v. Attrill, 146 U.S. 657; Northern Pacific R.R.Co. v. Babcock, 154 U.S. 190, 196; Herrick v. Minn. St.L.R.R. Co., 31 Minn. 11; Powell v. Great Northern Ry. Co.,102 Minn. 448, 452; Thompson v. Taylor, 66 N.J.L. 253; Rick v. Saginaw Bay Towing Co., supra.)
"Therefore we may lay on one side as quite inadmissible the notion that the law of the place of the act may be resorted to so far as to show that the act was a tort, and *Page 389 then may be abandoned, leaving the consequences to be determined according to the accident of the place where the defendant may happen to be caught." (Slater v. Mexican Nat. R.R. Co.,194 U.S. 120, 126.)
The question involved in the case at bar came before the court in Chubbuck v. Holloway (182 Minn. 225; revd. on another ground on reargument, 182 Minn. 231). It was decided on a factual situation almost identical with the facts in this case, that the courts of Minnesota should enforce against the personal representative of a deceased wrongdoer a cause of action given by a statute of Wisconsin, although to grant such remedy was contra to the law of the forum. The principle announced was reaffirmed in Kertson v. Johnson (185 Minn. 591). (Cf. Orr v. Ahern,107 Conn. 174; Friedman v. Greenberg, 110 N.J.L. 462.)
We believe the decision of the Minnesota court expresses the correct principle and is in accord with the modern view. The respondent suffered an injury as a result of the wrongful act of appellant's testator. The law should afford a remedy for the wrong suffered. The statute of Virginia affords such remedy. We do not find that the public policy of this State requires us to close the doors of our courts on the respondent and refuse to help him enforce the right given him by the law of the place of injury. While the statute of Virginia is not the law of this State, it does give rise to an obligation which we should carry out. (Slater v. Mexican Nat. R.R. Co., supra; Cuba R.R. Co. v. Crosby, 222 U.S. 473, 478.)
The first two questions certified should be answered in the affirmative, the third in the negative and the order affirmed, with costs.
CRANE, O'BRIEN and CROUCH, JJ., concur with LEHMAN, J.; HUBBS, J., dissents in opinion in which POUND, Ch. J., concurs.
Ordered accordingly. *Page 390