(dissenting):
Under the Quebec statute the plaintiff, Mary E. Johnson, who is the widow of the deceased, John E. Johnson, and her coplaintiffs seem to -have a right of action against the defendant to recover damages for the death of said deceased. But the action must be brought within one year after the death of the deceased, and no more than one action can be brought in behalf of those who are entitled to recover under the provisions of the statute, The proportion of the indemnity to which each is entitled is- determined in the action.
I agree with Mr. Justice Spring that the right of action may be enforced in the courts of our State ; that the'foreign statute controls except as to matters of procedure, and that the bringing of the action within one year after the death of the deceased, as provided in the Quebec statute, is a condition precedent attaching to the cause of action itself, and not a mere statute of limitation affecting the remedy. But I do not think that, because the plaintiff brought the action without her co plain tiffs joining with her originally, she is necessarily prevented thereby from recovering her damages. Nor do I think that the court is powerless to afford her relief by way of amendment of the summons and complaint, so as to show that she is prosecuting the action individually and not as administratrix of the estate of her deceased husband.
It is possible that - she, as well as her coplaintiffs, may encounter difficulties upon the trial in maintaining the action. It appears that while the action was commenced by her within one year after the death of her husband, the order amending the summons and complaint by adding her coplaintiffs as parties plaintiff to the /action was not made within one year. But I think that question need not be determined at this time.
The question here is whether the Special Term had authority to allow the amendment to the summons and complaint, and that question, I think, should be answered in the affirmative (Boyd v. U. S. Mortgage & Trust Co., 187 N. Y. 262) and the order affirmed.
Williams, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.