The action is in negligence. It seeks recovery for the death of plaintiffs’ intestate, alleged to have been occasioned by the negligence of the defendant.
Although a resident of this State, the deceased was killed within the State of Massachusetts, and hence this action seeks admeasurement of relief, in accordance with the provisions of the Massachusetts statute. (Revised Laws Mass. chap. 171, § 2, as amd. by Laws of 1907, chap. 375.)
So far as pertinent here, that act provides for the recovery of compensation for death occasioned by negligence, such recovery to be not less than $500 and not more than $10,000, and to be graded in proportion to the negligence of the defendant. The scheme of distribution of the recovery is also dissimilar to that under our statutes.
The theory of the motion is that the scheme of the Massachusetts act is repugnant to the law and public policy of New York to the extent that our courts will not enforce the liability decreed thereby. From an adverse decision of that question the defendant appeals.
The litigants agree that a liability decreed by the statute law of one State will be enforced by the courts of another State only when such enactment is substantially in accord with- the law of the latter and is not penal and not repugnant to the general policy of the jurisdiction wherein enforcement is sought. Such rule presents, primarily, the general character of the Massachusetts statute.
Extensive research fails to find among the decisions of this State any determination of the character of this particular act, and for judicial consideration thereof we must look to other jurisdictions.
In Cristilly v. Warner (87 Conn. 461) this act was construed *229in the particular under advisement, and the conclusion was reached that the Massachusetts act was penal in character. In there, discussing comparatively the- enactments of the two States, it was pointed out that the Connecticut law was remedial and sought to produce just compensation, for the injury; while the Massachusetts enactment, in its provisions grading the amount of the recovery in proportion to the negligence of the defendant, sought no such end, but was punitive in character and eliminated all consideration of the actual damage sustained.
In McCarthy v. Wood Lumber Co. (219 Mass. 566) it is pointed out that this statute is penal in its purposes and that the damages permitted thereby are, in substance, afine imposed, which the State permits to be paid to designated individuals instead of into the public treasury.
In O’Reilly v. N. Y. & N. E. R. R. Co. (16 R. I. 388) and in Gardner v. N. Y. & N. E. R. R. Co. (17 id. 790) the courts of Ehode Island also construed the Massachusetts statute as penal in character.
The Vermont courts seem to have followed the same reasoning. In Adams v. Fitchburg R. R. Co. (67 Vt. 76) the reasoning is carried into great refinement, and it is pointed out that the determination of the amount of the recovery under the Massachusetts enactment follows the same line of inquiry as would govern a court in fixing a fine.
The same line of reasoning is followed in the Federal court in Lyman v. Boston & Albany R. R. Co. (70 Fed. Rep. 409). The conclusion there reached of the penal character of this statute is therein stated to rest both upon analysis of the statute and the following of the Massachusetts decisions, both leading to the like result.
The judicial reasoning found in those decisions seems well grounded. The structure and purpose of the statute are both at variance with that of the New York law. The former is clearly penal in its provisions and is not compensatory in its purpose. In neither letter nor substance does there seem to be much if any similarity between the enactments of the two States.
Under such circumstances the courts of this State should not *230undertake to enforce a liability created by the statutes of another State.
The order appealed from should be reversed, with costs, and judgment on the pleadings should be awarded the defendant, with costs.
All concurred, except Kruse, P. J., and Foote, J., who dissented.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.