Plaintiff has brought "action in the New York courts to recover damages for the death of her intestate. She sues under the so-called New Jersey “ death statute ” as administratrix ad prosequendum, a representative capacity unknown to our lawk. Under the New Jersey statute, if successful, plaintiff may not receive the damages recovered, but the same must be paid to another and different representative of the deceased, who alone can satisfy any judgment recovered. In my opinion an action brought under the New Jersey statute by a personal representative known only to the law of that State must be prosecuted there The New York statutes provide no machinery for the enforcement of the New Jersey statute. The plaintiff is an officer created under the New Jersey death law, and is an officer separate and distinct from the general administrator. The functions of the two administrators are entirely different. They receive separate letters from the court appointing them. The statute of New Jersey provides that only an administrator ad prosequendum may sue. She cannot collect a judgment recovered. Such judgment may only be collected by a general administrator — a representative separate and distinct from the plaintiff in the action. Under the New York statutes no one except a judgment creditor may enforce a judgment recovered. Our laws are entirely inapplicable to the enforcement of the New Jersey statute, I think plaintiff has no jurisdiction to sue outside the State of New Jersey. This principle seems to have been applied in the death action of Slater v. Mexican National R R. Co. (194 U. S. 120), arising under the statutes of Mexico. In thab case the plaintiff sued for money damages in the State of Texas. The Mexican statutes contained unique provisions as to payments to dependents of the deceased. The Texas law contained no such provisions and the court refused to permit a recovery.
At common law, no cause of action existed to recover for death by reason of negligence. The only authority in this State for such *197an action is to be found in section 130 of the Decedent Estate Law (as added by Laws of 1920, chap. 919), which provides that only a general executor or administrator of a decedent who has left him or her surviving a husband, wife or next of kin may maintain an action for damages for negligence causing decedent’s death, and by section 133 of the same law (added by Laws of 1920, chap. 919, as amd. by Laws of 1929, chap. 229), it is provided that the damages recovered must be distributed by the plaintiff in such action as in said last-mentioned section provided. Manifestly such machinery provided by the New York statutes cannot be used by the plaintiff in this action.
I am, therefore, compelled to dissent and vote to reverse the order appealed from and grant defendant’s motion to dismiss the complaint.
Order affirmed, with ten dollars costs and disbursements, with leave to the defendant to answer within twenty days from service of order upon payment of said costs.