In my opinion the order appealed from should be affirmed. So far as concerns the validity, under the Federal Oonstitu*501tion, of section 1780 of the Code of Civil Procedure as it stood before the amendment of 1913 (Laws of 1913, chap. 60), inasmuch as it denied tó a citizen of a foreign State a right of action enjoyed by the citizens of this State, I consider that there is very great doubt. Of course I am aware that its validity has been affirmed by the Court of Appeals in Robinson v. Oceanic Steam Navigation Co. (112 N. Y. 315), which was followed by this court in Johnson v. Victoria Chief Copper Mining & S. Co. (150 App. Div. 653). Since the above-cited decision of the Court of Appeals the question seems to have been differently decided by the Supreme Court of the United States — the paramount authority upon questions affecting the construction and application of the Federal Constitution. (Chambers v. Baltimore & Ohio R. R., 207 U. S. 142; International Text Book Co. v. Pigg, 217 id. 91, 112.) Since it is universally conceded that upon such questions the authority of the United States Supreme Court is controlling (People ex rel. Central Park, etc., R. R. Co. v. Willcox, 194 N. Y. 383; Sibley v. Sibley, 76 App. Div. 132), it seems that the Robinson Case (supra) and those cases in this State which have followed it must be deemed to have been overruled. Apart from that question, however, I am of opinion that the amendment of 1913 to section 1780 of the Code of Civil Procedure acted retroactively so far as to confer jurisdiction upon the Supreme Court to proceed with this action. Assuming that under the section referred to as originally enacted the court was without jurisdiction, that lack of power went, not to the right of action, but to the remedy or right of enforcement. The statute giving a right of action for an injury causing death is general in its language, and does not confine the right to sue to a resident or citizen of this State, nor to a death occurring within the State. (Code Civ. Proc. §1902.) The plaintiff, therefore, acquired a right of action under our statute when the death occurred (the statute of the State of Texas also giving a right of action), and the only bar to her recovery here was section 1780 of the Code, which closed our courts to her because of her non-residence. It seems to me, therefore, to be entirely accurate to say that she had a cause of action, and that section 1780 of the Code operated only to bar her remedy. It seems to be well settled that *502a statute which affects only the remedy, or the form of procedure, will be construed to act upon pending actions unless a contrary intention is plainly expressed in the statute itself. (Matter of Davis, 149 N. Y. 539; Peace v. Wilson, 186 id. 403; Laird v. Carton, 196 id. 169.) As was said' respecting the operation of a similar statute under similar circumstances: “ It acts immediately on a thing then in existence, and from that moment gives the court a power to act on that thing which it did not have before.” (Larkin v. Saffarans, 15 Fed. Rep. 147, 149.)
In all of the cases in which it has been held that statutes, remedial in their character and similar to the amendment of 1913 of section 1780 of the Code of Civil Procedure, act retroactively, the courts have coupled matters affecting the remedy and matters affecting only procedure as alike governed retroactively. A remedy has been defined as a judicial means for enforcing a right or redressing a wrong (4 Words & Phrases [2d series], 260), or as it has been defined in this State an “original application to a court of justice for a judgment or an order” for the relief sought by the applicant. (Matter of Cooper, 22 N. Y. 67, 87.)
What we have here is an action commenced by proper service of process to enforce a right which plaintiff had in some forum to obtain redress from the defendants. At the time the action was commenced the court had no jurisdiction to entertain it and render judgment therein, but before the time came to apply for judgment, such jurisdiction had been conferred upon the court. It seems to me that the act thus conferring jurisdiction should be held to attach to every pending litigation in which no application for judgment had yet been made, and thus to confer jurisdiction upon the court to render the proper judgment in that action.
For the reasons thus briefly stated I am of the opinion that the order appealed from should be affirmed, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.