Plaintiff’s intestate, who was a trackhand in the employ of the defendant, was struck and killed by one of defendant’s trains at Schenectady, N. Y., while engaged in repairing one of defendant’s main tracks over which ran the Twentieth Century Limited, the Lake Shore Limited running from New York to Chicago, and the Southwestern Limited running from New York to St. Louis. He was, therefore, at the time of his death employed by the respondent in interstate commerce. (Pedersen v. D., L. & W. Railroad, 229 U. S. 146, 152; Second Employers’ Liability Cases, 223 id. 1, 51; San Pedro, L. A. & S. L. R. R. Co. v. Davide, 210 Fed. Rep. 870; Eng v. Southern Pac. Co., Id. 92; Barlow v. Lehigh Valley R. R. Co., 158 App. Div. 768.)
*827The proofs upon the trial were sufficient to warrant the submission to a jury of the issues of negligence and contributory negligence. At the close of the evidence the court granted a nonsuit upon the ground that the intestate left him surviving no persons entitled to recover under the Federal Employers’ Liability Act as being next of kin dependent upon the decedent for support. (See 35 U. S. Stat. at Large, 65, chap. 149, as amd. by 36 id. 291, chap. 143.) Ooncededly the intestate left neither father, mother, wife or children, and his next of kin were two brothers and two sisters (the latter residing in Italy), each of whom was upwards of twenty-one years of age. No claim is made that the decedent ever contributed any sum whatever toward the support of either of his brothers or of his unmarried sister, or that either was in any way dependent upon him for support. The decedent did, however, more or less frequently, send money to the older sister in Italy. The testimony upon the subject was given by a companion of decedent, and is as follows: “ Q. And did you ever write letters through Rocco [decedent] to her? A. Yes. Q. And what was there about sending money ? A. Yes, we send money every month. Q. How much money each month? A. Well, according. Sometimes five or six dollars every month. Q. And was the sister married, and did she have children ? A. Yes. Q. Her husband dead ? A. Yes, dead between three or four years.”
Decedent was about nineteen years of age and the sister about forty. It can hardly be said in the absence of all’ other evidence relating to the subject that this testimony furnished evidence of the sister’s dependence upon decedent sufficient to warrant the submission of that question to the jury. For aught that appears, the decedent may have sent the money as a mere gratuity, or, as is often the case with foreigners, especially those contemplating returning to their own country, for deposit, or to' the sister of much more mature years than he to care for for him. The testimony appears to have been introduced for the purpose of showing the frugality of the decedent rather than for the purpose of proving that the sister was dependent upon the brother for support, the burden of establishing which was upon the appellant, for nowhere in the record is there to be found any sugges*828tion upon the part of the appellant’s counsel that the sister was dependent for support upon decedent. That the appellant made no claim that the sister was thus dependent, or that the evidence was sufficient to warrant the submission of that question to the jury, but claimed that the sister was not dependent, is also manifest from the discussion between the respective counsel and the court at the close of the evidence, the respondent having at that time moved to dismiss the complaint upon the grounds, among others, that the decedent was employed by the respondent in interstate commerce at the time of his death; that the Federal Employers’ Liability Act was exclusive, and that it affirmatively appeared that the decedent left no next of kin dependent upon him. This discussion occurred upon reassembling the following morning: The court: “ The motion is to dismiss. * * * Now, the United States courts have uniformly held that it is exclusive, that it takes the place of all other remedies in that field, and where the Federal Act applies then there is no other. You say it does not apply here because there is no dependent, but the difficulty with that is, it seems to me, it does not go to the question of whether or not the Federal Act applies to the facts of this case. It does apply to the facts of the case, but there is no one here who can enforce the facts.” Appellant’s counsel: “The State statute provides a cause of action for the next of kin. The Federal statute also provides a remedy for dependent next of kin. Bemember this is a mere incident that the man died.” The court: “ But they do not make any such distinction. They say it is exclusive.” Appellant’s counsel: “I know, but it is exclusive, Judge, only to those who have the remedy.” Thereupon the court in connection with other statements,, suggested the withdrawing by appellant of a juror. Appellant’s counsel: “Would your Honor permit me to amend the complaint to allege squarely in the complaint, so that the thing can be beyond cavil, that the next of kin are brothers and sisters of the deceased ? ” The court: “ I will permit you to do that, so that you can have your record complete.” Appellant’s counsel: “ We do not ask to withdraw a juror. We will take your Honor’s ruling.” Thereupon the court granted a nonsuit, to which exception was duly taken. Thus appellant’s counsel, who were fully competent to care for the rights of *829appellant, not only did not ask to amend the complaint by alleging the dependency of the sister, or to recall the companion of decedent through whom the money was sent, or to recall the appellant who was the brother of decedent, both of whom were present at the trial and testified as witnesses for the appellant, but without asking to go to the jury, or making the claim that the sister was dependent, the appellant elected to amend his complaint by alleging that the next of kin were the brothers and sisters of decedent, and to stand upon appellant’s alleged right to recover for their benefit. Furthermore, appellant’s counsel make no claim in their brief before this court that the sister was dependent upon the decedent for support, or that under the evidence that question was one which should have been submitted to the jury, or that there was a mistrial. Appellant’s position at the trial and upon this appeal constitutes practically a concession that no dependency existed. The appellant stands here, as upon the trial, upon the broad proposition that the statutory right of action given in this State* for the benefit, in this case, of the brothers and sisters as next of kin, has not been superseded by the right of action given by the Federal statute to such only, if any, of the brothers and sisters as might be legally dependent upon the decedent; and that it was not the intent of the Federal statute to take away a right of action which a person had under the State statute, unless such person was given a right of action under the Federal statute. That the Federal statute was paramount and exclusive, superseding the State statute, has been repeatedly held by the United States Supreme Court. (Southern Railway Co. v. Reid, 222 U. S. 424, 436; St. Louis & San Francisco Railway v. Seale, 229 id. 156; North Carolina R. R. Co. v. Zachary, 232 id. 248; Seaboard Air Line v. Horton, 233 id. 492.)
In the latter case it was said: “But it is settled that since Congress, by the act of 1908, took possession of the field of the employer’s liability to employes in interstate transportation by rail, all State laws upon the subjeet are superseded.”
The fact that the complaint alleges, and the answer admits, *830,that the respondent is a domestic corporation engaged in the business of running and managing a railway from Buffalo to New York does not prevent the respondent claiming that the Federal statute was applicable to its operation. Even though a domestic corporation, its track which the intestate was engaged in repairing at the time he was killed, was used for the purposes of interstate as well as intrastate commerce. The evidence that the track which was being repaired was so used was admitted without objection.
The only question of fact which appellant’s counsel in their brief claim should have been submitted to the jury was as to whether decedent was engaged in interstate commerce at the time of his death. This under the conceded facts was a question of law.
In view of all the facts, no good reason can be given why the parties should be put to the expense and delay of a retrial. As the questions which the appellant desires to have determined are clearly presented by the present record, the appellant should be allowed to prosecute his appeal without a retrial of the action.
The judgment appealed from should be affirmed.
Smith, P. J., concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.
See Code Oiv. Proc. § 1903 et seq. — [Rep.