« ПретходнаНастави »
witnesses or avaricious clients. Whatever damages the Legislature decides should be allowed as punitive, that amount should be invariable, whether the stricken person was a millionaire or a peasant; whether he spent his summers abroad, hob-nobbing with princes, or was simply a plain American citizen, whose shadow each summer day's evening the sun cast through an humble doorway, where he was greeted, not by liveried servants, but by a family to whom his existence was their very life and light. It was with this view of the case, Mr. Chairman, that I prepared the amendment which I have offered.
Mr. Cassidy — Inasmuch as the right of action is a statutory action and not an action at common law, and is perpetuated in the Code of Civil Procedure, which I desire to read, and is limited not only in the money consideration, but the right of action is also limited as to whom the moneys shall go to, I move you, therefore, that the Code of Civil Procedure be substituted as an amendment to this constitutional provision. I read: "The executor or administrator of a decedent, who has left him or her surviving a husband, wife or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof, if death had not ensued. Such an action must be commenced within two years after the decedent's death.
"The damages recovered in an action, brought as prescribed in the last section, are exclusively for the benefit of the decedent's husband or wife and next of kin; and when they are collected they must be distributed by the plaintiff as if they were unbequeathed assets left in his hands, after payment of all debts and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action, and his commissions upon the residue; which must be allowed by the surrogate, upon notice, given in such a manner and to such persons as the surrogate deems proper.
"The damages awarded to the plaintiff may be such a sum, not exceeding $5,000, as the jury, upon a writ of inquiry, or upon a trial, or, where issues of fact are tried without a jury, the court or the referee deems to be a fair and just compensation for the pecuniary injuries resulting from the decedent's death to the person or persons, for whose benefit the action is brought."
The Chairman-Now, Mr. Cassidy, will you put your motion in writing.
Mr. Cassidy I will. I move to amend the amendment offered by Mr. McKinstry by substituting the Code of Civil Procedure, which preserves the right of action, in its place.
Mr. McDonough - Do you mean the whole Code?
Mr. Cassidy The whole Code.
President Choate resumed the chair and announced that under the rule adopted by the Convention, the hour of one o'clock having arrived, the Convention stands in recess until three o'clock.
Thursday Afternoon, August 16, 1894.
The Constitutional Convention of the State of New York met pursuant to recess, in the Assembly Chamber, in the Capitol at Albany, N. Y., Thursday, August 16, 1894, at 3 P. M.
Vice-President Alvord called the Convention to order.
The President pro tem.- The House will be in Committee of the Whole on the proposed constitutional amendment No. 380, and the gentleman from Essex, Mr. C. B. McLaughlin may take the chair.
Mr. President, before the House goes into Committee of the Whole, I desire to ask to be excused.
The President pro tem.- The Chair is opposed to it. The gentleman from Essex, Mr. McLaughlin, will take the chair.
Mr. C. B. McLaughlin took the chair in Committee of the Whole. The Chairman-The Secretary will state the question before the House.
The Secretary-The question before the House is the amendment offered by Mr. Cassidy, to general order No. 15, "Substitute sections 1902, 1903 and part of section 1904 of the Code of Civil Procedure, which reads as follows:
Mr. Bush Mr. Chairman, I raise the question that there is no quorum present. I think it is a very doubtful matter whether there is any quorum here, and I do not think we can do business with any less number.
The Chairman What action will the committee take?
Mr. Holls I rise to a point of order. The point of no quorum cannot be raised in Committee of the Whole. The first proceeding is that the committee rise and report progress, and I simply hope that that will not be pressed.
Mr. M. E. Lewis - That cannot be right under the ruling of last Friday. At that time the rule was stated that if it appeared that there was a lack of a quorum in the Committee of the Whole, the President shall resume the chair. If the chairman of the Committee of the Whole can determine that there is no quorum present, then it is his duty to inform the President to that effect, and the President will then take his place, for the purpose of ascertaining whether there is a quorum or not.
The Chairman-The Chair rules that the point of order made by Mr. Holls is not well taken, and will ask the President to resume the Chair.
Mr. Alvord - Mr. Chairman, in order to determine whether there is a quorum present in the Committee of the Whole, I ask, sir, that you ask those present to rise, and remain until counted, so that you can determine whether there is or is not a quorum.
The Chairman-The Chair has already ruled to ask the President to take the chair for the purpose of ascertaining whether there is a quorum or not.
The Committee of the Whole thereupon rose and Vice-President Alvord resumed the chair.
Mr. McLaughlin- Mr. President, the Committee of the Whole have had under consideration the proposed constitutional amendment (printed No. 380), entitled, "Proposed constitutional amendment, to amend article I of the Constitution, as to damage for the loss of human life," and, finding no quorum present, have made some progress in the same, but not having gone through therewith, request the chairman to report the fact to the Convention.
The President pro tem.-The gentleman from Essex, Mr. C. B. McLaughlin, chairman of the Committee of the Whole, reports to the Chair that no quorum is present. In order to determine that question, the Secretary will proceed to call the roll of the Convention.
The Secretary proceeded to call the roll, and the following were found to be present:
Messrs. Abbott, Ackerly, Alvord, Arnold, Banks, Barrow, Becker, Bowers, Burr, Bush, Campbell, Carter, Cassidy, G. W. Clark, H. A. Clark, Cochran, Coleman, Deady, Dean, Deterling, Deyo, Dickey, Doty, Durfee, Durnin, Floyd, Foote, Andrew Frank, Augustus Frank, C. A. Fuller, Galinger, Giegerich, Gilbert, Gilleran, Goodelle, Hamlin, Hawley, Hecker, Hedges, Hill, Hirschberg, Holls, J. Johnson, Kellogg, Kimmey, Kinkle, Kurth, Lauterbach, Lester, M. E.
Lewis, Lincoln, Mantanye, Marks, Marshall, Maybee, McArthur, McClure, McCurdy, McDonough, McIntyre, McKinstry, C. B. McLaughlin, McMillan, Mereness, Meyenborg, Moore, Morton, Nichols, Nicoll, Nostrand, O'Brien, Osborn, Parker, Parmenter, Peabody, Phipps, Pool, Porter, Pratt, Putnam, Redman, Roche, Rogers, Root, Sanford, Schumaker, A. B. Steele, W. H. Steele, Storm, Tekulsky, Tibbetts, Titus, Towns, C. H. Truax, C. S. Truax, Tucker, Turner, Veeder, Vogt, Wellington, Wiggins, Williams, Woodward, President.
The President pro tem.- The Secretary reports ninety-two present, and the gentleman from Essex, Mr. C. B. McLaughlin, will please resume the chair.
Mr. C. B. McLaughlin took the chair in Committee of the Whole. The Chairman - The question is on Mr. Cassidy's amendment. Mr. McDonough Mr. Chairman, I would like to inquire whether Mr. Cassidy has sent up his amendment in writing.
The Chairman - The Secretary announces that he has sent it partly in writing and partly in print.
Mr. Cassidy Mr. Chairman, this action is a peculiar action. It is virtually an insurance. The fee which is given in case of death. is a fee which cannot be reached even by the creditors of the decedent, and, if the $5,000 limitation is to be removed, it seems to me that in order to preserve the right of action, we must take all the sections of the Code of Civil Procedure which provide for maintaining the action, and incorporate them into the Constitution. I do not believe it would be good sense for us to limit a statutory action over which we will practically have no control, and one which the Legislature might repeal at any time it sees fit. If there is to be any meaning at all to the work of this Convention in removing the $5,000 limitation, we ought also to preserve the right of action. The amendment which I propose is practically the right of action as it is preserved in the Code of Civil Procedure with the $5,000 limitation struck out. It seems to me that this amendment should prevail.
Mr. Dickey- Mr. Chairman, the purpose of this amendment is very evident. It is offered by a gentleman who is opposed, and who voted against the original proposition, overruling the committee. It is intended to embarrass and defeat and hinder and delay this proposed amendment. I hope the Convention will waste little or no time, but will speedily vote down the amendment.
Mr. Chairman, I wish to correct the gentleman. I voted with him when this question was up before, and I wish to vote with him now on adopting this amendment.
Mr. Chairman, do I understand correctly the position of the Committee of the Whole, that the proposition now before the committee offered by the gentlemen are substitutes?
The Chairman They are amendments.
Mr. Veeder There are two amendments pending now?
The Chairman -- There are two amendments pending now.
The Chairman - Yes.
Mr. Veeder - I understood they were substitutes?
They are amendments.
Mr. Chairman, I move we take a vote on this
Mr. Chairman, I rise to a point of order. The proposition of the gentleman (Mr. Cassidy) is not an amendment, not germane to the proposition under discussion.
- The Chair rules the point of order not well
Mr. Barrow Mr. Chairman, when this proposed amendment was reported to this Convention adversely by the committee to which it had been referred, I voted against the report, because I was in favor of submitting the question to the Committee of the Whole, not because I favored the proposition, but because it was evidently a proposition regarding which there was a great diversity of opinion. I voted in that way, also, for the reason that the question was one upon which I was not then prepared to vote intelligently.
I have since considered the subject more fully and I have come to the very decided conclusion that the report of the committee is correct and that none of the proposed amendments should be submitted by this Convention to the people.
I have not come to this conclusion wholly upon the ground that it is a matter properly of legislation, and fully within the power of the Legislature, and, therefore, not a subject with which this convention should deal, but because I believe it to be an unwise proposition upon its merits.
Nevertheless, I do oppose it, as I think we should oppose every amendment here, of a purely business character, when the relief sought for can be obtained through the Legislature. If we were making a new Constitution here, that is a rule which should be