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The application of "natural justice" as it was viewed 20 years ago, was recently commented upon by the Chief Justice of our Province in open Court in the Kaburda decision. He indicated his concern with the presentation of case law of some 20 years ago with respect to natural justice, in view of the administrative law climate of today.
The genesis of the obligation with respect to self governing bodies in the disciplinary process commences, in most cases, at the time a written complaint is lodged. At that time, the investigators, not unlike lawyers, resemble historians and thus are largely involved in the process of re-creating historical events. The gathering of this evidence occupies a substantial amount of time, not only for the prosecutor, but also for counsel acting on behalf of the party against whom the complaint is launched.
The self governing body is required to identify, select and marshal the evidence in an organized fashion, while at all times being cognizant of the duty of fairness.
James T. Casey, The Regulation of Professions in Canada (Carswell), sets out at Chapter 7, on page 7-1, the historical perspective of the general duty of fairness.
But a more important principle was violated by the proceeding of the council. They took this step, so destructive of all the applicant's prospects in life and of his rights and status of a professional man, without the slightest notice to him, without hearing him or giving him any opportunity of defending himself, and they did it with such secrecy that he was not aware of the fact for several years after.
Even in 1879, the Court concluded that the law was very clear on the point that McConnell could not be removed from the register without notice and the opportunity of being heard.
At the same time the self governing body (being regulatory in nature) cannot advocate on behalf of the interest of it's members, but must approach the issue from the perspective of public interest. In doing so it must at all times be cognizant of the professional's rights.
The issue then is to deal with the prosecution of an appropriate complaint while still maintaining the duty to apply the concept of natural justice, as we know it today. In many instances, the complaint (or problem) may resolve itself through alternative processes within a alternative dispute resolution system.
There are, I respectively suggest, two cases which illustrate judicial concern.
But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
It is very difficult with domestic tribunals which sit in judgment on the members of a trade or profession. They wield powers as great as, if not greater than, any exercised by the courts of law. They can deprive a man of his livelihood. They can ban him from the trade in which he has spent his life and which is the only trade he knows. They are usually empowered to do this for any breach of their rules, which, be it noted, are rules which they impose and which he has no real opportunity of accepting or rejecting. In theory their powers are based on contract. The man is supposed to have contracted to give them these great powers; but in practice he has no choice in the matter. If he is to engage in the trade, he has to submit to the rules promulgated by the committee. Is such a tribunal to be treated by these courts on the same footing as a social club? I say no. A man's right to work is just as important to him as, if not more important than, his rights of property. These courts intervene every day to protect rights of property. They must also intervene to protect the right to work.
Much of the case law that we deal with today stems, directly or indirectly, from the cases quoted.
In dealing with the standards of proof, the case law is replete with the standards that must be adopted in the prosecution of a professional.
In Hanson v. College of Teachers (British Columbia) 87 B.C.L.R. (2d) 86 at p. 95, the British Columbia Court of Appeal cites and adopts Chambers Judge's reasons with respect to the standard of proof.
Both counsel were in agreement that the correct standard of proof where a professional person is being tried by his or her professional body in disciplinary proceedings whose effect may be to deprive that person of his or her right to practice, it is a standard less than the reasonable doubt test of criminal law but higher than the balance of probabilities of civil cases. It has been expressed as proof by evidence cogent enough to make it safe to uphold the findings with all their consequences for the professional person's career and status in the community: see Hirt v. College of Physicians & Surgeons (British Columbia) (1985), 63 B.C.L.R. 185 (S.C.) And Jory v. College of Physicians & Surgeons (unreported), December 13, 1985, Vancouver No. A850601 (B.C.S.C.).
Bhandari v. Advocates Committee,  3 All E.R. 742 (P.C.), at pp. 744-45.
C. (J.) v. College of Physicians and Surgeons (British Columbia) (1988), 31 B.C.L.R. (2d) 383 (S.C.) At pp. 398-99.
Once there has been a finding of a reasonable apprehension of bias, it is unnecessary to inquire whether the result might have been the same but for the unfairness.
It follows, in my view, that the proceedings on these complaints to this date must be set aside.
The issue of awarding costs was explored by Mr. Justice Low in Kamani v. The College of Dental Surgeons of British Columbia, unreported, June 13, 1994, Vancouver Registry No. A930189.
There is a related consideration with respect to the College's decision to bring charges. It should have to do so at some risk of not recovering its costs and at some risk of having to pay costs. If that risk did not exist, there would be a greater potential harm that dentists charged would be deterred from defending for fear of incurring substantial, even financially crippling, unrecoverable legal expenses and perhaps having to pay the College's full costs even if successful. Given the very high expenses now incurred in the investigation and hearing of complaints against members of professional bodies, successful or partially successful assertions of innocence should result in a fair and reasonably predictable full or partial recovery of costs.
I have grouped the Stefani and Patton decisions in which our Court dealt specifically with how not to conduct an investigation.
Dr. Ralph E. Stefani v. The College of Dental Surgeons of British Columbia, (1997) 27, B.C.L.R., (3d) 34. Warren C.J., sets out an excellent analysis on the procedural steps which a regulatory body must take in conducting investigations into complaints against professionals.
The doctor was not there and he had every right to be given the opportunity to be so. The College, particularly in having a lawyer on the Panel, should have known that. If they did not know that then they were negligent in not knowing it or they were irresponsible in overlooking it.
The Panel exaggerated its error by suggesting it would hear it because it might not impact in any event on what had already been heard. This makes it appear that the Panel knew they should not hear the evidence but chose convenience over proper procedure.
Doctor Robert E. Patton v. The College of Dental Surgeons of British Columbia, unreported, May 9, 1997, Vancouver Registry No. A963157.
There are two decisions in the Patton case. Firstly, on January 24, 1996 the Honourable Mr. Justice Cohen ruled in favour of Dr. Patton when Dr. Patton appealed the decision of the College made pursuant to section 39.6 (1)(b) to suspend his registration.
In his text, The Regulation of Professions in Canada by James T. Casey, the author deals with interim suspensions and describes this power in the governing statutes for professions as a draconian power because the professional's ability to practice his or her profession and to earn a livelihood has been suspended with the possibility of permanent damage to his or her reputation without there being a finding of any misconduct.
On May 9, 1997, Mr. Justice Fraser in Patton, made a number of comments, some of which I include for your consideration.
Robert Patton must surely rue the day--28th January 1994--when he wrote a letter. Sending it triggered a chain of events that threatens his entitlement to continue to practise in his profession.
Dr. Patton applies, under the Judicial Review Procedure Act, for an order in the nature of prohibition, extending not only to the proposed inquiry, but also as to further investigation by the College and as to the weekly inspections ("audits") conducted on his practice for last two years or so. These audits cost him $500 each.
What is meant by a "Practice Review" seems to be an examination of a member's patient files (a "chart review") by representatives of the College, sometimes (or perhaps always) followed by a meeting of the member and these representatives. Dr. Evelyn McNee, a Deputy Registrar of the College, explained the terminology in a letter to Dr. Patton of 28th June 1995. But I cannot find any basis in the Act or the Rules for a chart review. Nor could Warren, J., as appears from his decision of 16th August 1996 in Stefani v The College of Dental Surgeons (A950239 Vancouver Registry)at paragraph 22.
"I can see no need for the involvement of the College any further. I feel there are no reasonable and rational grounds for concerns relating to the quality of care you were providing your patients, the appropriateness of your care, or the manner in which you provide those services."
This letter was based on the report prepared by Dr. Croft. Dr. Croft now says that Dr. Turner's reporting letter, which I have just quoted, was inaccurate. This is difficult to accept, given that other such reporting letters from Dr. Turner tend to repeat precisely what is in the report, only changing the third-person references in it to second-person ones (e.g., changing "he" to "you"). As it happens, Dr. Croft's 1993 report cannot be found.
Drs. Croft and Cheung also recommended a Practice Review. This time Dr. Patton agreed, despite having received legal advice not to. The Practice Review panel ended up receiving 92 charts, of which 22 had been selected by Dr. Patton, 50 supplied by him according to criteria laid down by the College based on the use of general anesthesia, and 20 selected by Dr. Rosamund Harrison, on behalf of the College. The written instructions given to Dr. Harrison were entirely nonspecific, save that the charts selected should involve treatment in the previous two or three years. But Dr. Harrison, it seems to me, must have had something else guiding her selection, since it took her something like two hours to do it. According to Dr. Patton, it only took ten minutes for Dr. Croft and him to select 20 files in 1993.
The analysis here involves my discretion. The decision of Esson, C.J.S.C. in Hammond v Association of British Columbia Professional Foresters (1991) 47 Admin. L.R. 20 confirms, if confirmation was needed, that the remedies of judicial review can, in some circumstances, extend to the investigatory stage of discipline proceedings. The occasion for a court to intrude at that stage should be scarce, but nonetheless will sometimes be necessary.
It is important to allow self-regulating professional bodies, such as the College here, to do their duty. It must be recognized, as well, that the members of these various bodies, while they may receive some guidance as to concepts of fairness, are doing this work on the side, on their own time and, typically, without pay. They are not expected to be sophisticated about legal ideas of fairness.
This is where the Court comes in. The supervisory jurisdiction of the Court is in place to guard the concept that things must be done fairly. When a Court sets aside something done by a body such as the College, it does so from the experience of a professional lifetime considering issues of fairness.
I agree with the analysis of Warren, J. In Stefani that the disciplinary process of the College of Dental Surgeons is entirely complaint-driven.
I imagine that Dr. Patton would, if asked, characterize his treatment philosophy as conservative and compare it favourably with the more extensive treatment and more frequent use of x-rays endorsed by his critics.
Nonetheless, many of his peers see his ways as inadequate. I see no reason to characterize their actions as springing from anything other than a wish to protect the public. I imagine that they see Dr. Patton as someone who can sustain a high-volume practice because of sloppy procedures. The converse analysis, of course, would be that it is the critics of Dr. Patton who advocate the more extensive procedures which generate more fees.
My conclusion is that so much of the evidence to be presented to the Inquiry has been assembled illegitimately that the relief sought by Dr. Patton must be granted. The taint extends to the three complaints.
Dr. Ralph E. Stefani v. The College of Dental Surgeons of British Columbia.
Delay: the Court also found that because of the 16-month delay and the subsequent delays in dealing with the complaints that were made against Dr. Stefani, and, relying on an earlier decision in Brown v. The Association of Professional Engineers & Geoscientis (British Columbia), that the delay resulted in an unfairness and denial of natural justice.
The case is an excellent detailed analysis of procedural steps which a regulatory body must take in conducting investigations into complaints against professionals.
I conclude therefore that the deputy registrar and the Review Committee acted without jurisdiction and that there was inordinate delay resulting in an abuse of process and a denial of natural justice.
Mr. Justice Warren also found that a dentist is entitled to have, and be represented by legal counsel at a Peer Review - a contrary position taken by the College for some considerable time.
As for the Committee's refusal to allow the petitioner to be represented by his counsel at the hearing, this was contrary to the express requirement of sec. 50 of the Act. Dr. Stefani was most certainly a person "whose status or conduct" was the subject of an inquiry. As such he was entitled to be represented by his counsel.
Further, I find that the deputy registrar exceeded his jurisdiction when he wrote to the petitioner in order to implement a "practice review", a process not known in the Act or the rules. Consequently his referral to the Regulatory Quorum in order to get an inspection was without jurisdiction. When a person in a position of authority such as that of the deputy registrar asks for agreement by the registrant to a process, it can hardly be said to be voluntary. A "request" for compliance coming from the registrar of the governing body of the respondent's profession, can scarcely be considered a "request". It was a coercive and improper attempt to get the petitioner to participate in a process that was not authorized by the Act or rules.
On September 15, 1997, the Supreme Court of British Columbia dealt with yet another decision with respect to procedural unfairness in Doctor James Findlay v. The College of Dental Surgeons of British Columbia, Vancouver Registry No. A963629.
In Findlay, Mr. Justice Low found that the College in disbanding the review panel without presenting it's report to the Registrar, accepted that the complaint process was legally flawed. He granted the College the jurisdiction to bring review proceedings to a halt and "start all over again".
 I am not persuaded that the whole process of investigating all the complaints, as well as the College's proposal for continuing the investigation of those remaining, is irremediably flawed. Despite Mr. Cadman's very able and forceful submissions to the contrary, I accept the College's position that the only procedural error before the old review panel was denial of counsel participation before it to the extent required by the Stefani decision.
It follows that the direction for an inquiry which resulted from that recommendation should also be quashed but it does not follow that the Association should be prohibited from conducting a hearing or taking any further steps. Having regard to the preliminary nature of the committee's determination, to prohibit all further proceedings would be to give inadequate weight to the public interest in professional bodies such as the Association carrying out their duty of ensuring that high standards be maintained in the profession.
The appropriate remedy in my view is to direct that a fresh investigating committee be struck to carry out the investigation and to recommend whether there should be a hearing. The new committee should have available to it the report of the first committee subject to any excisions which may be made on proper grounds of privilege. The report in the form in which it is available to the new committee should also be available to the member prior to any meeting, hearing or interview which the committee may have with him.
Chief Justice Williams in Hammami v. College of Physicians and Surgeons of British Columbia, unreported, June 27, 1997, Vancouver Registry No. A912442, (B.C.S.C.). Williams C.J., dealt with the issue of a professional's right to have disclosure from an administrative tribunal in accordance with the principals enunciated in R. v. Stinchcombe,  1 W.W.R. 97 (S.C.C.). In this case, the licensed opthamologist asked for and was refused disclosure of his file. The physicians recommended that his right to practice be restricted and the College followed those recommendations. The issue was whether or not the College made an error in not disclosing the file. Chief Justice Williams in his judgment of June 27, 1997 cited Mr. Justice Oppal who dealt with the same party in another decision (November 3, 1989), wherein Mr. Justice Opal cited R. v. Sussex Justices.
The Crown is under a duty in indictable offences to disclose to the defence all material evidence whether favourable to the accused or not.
Chief Justice Williams cites one of the first administrative law cases, applying the Stinchcombe disclosure principal.
R. V. Stinchombe also recognized that the "fruits of the investigation" in the possession of the Crown "are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice be done" (p.331). We are of the opinion that this point applies with equal force to the proceedings before a Board of Inquiry and that the fruits of the investigations are not the property of the Commission.
We are also of the opinion, while not necessary to our decision, that the role of the Commission counsel is analogous to that of the Crown in Criminal proceedings.
Clearly the court in this case considered that full disclosure is a necessary component of fairness whether in the criminal or administrative case context.
Minimally, this should include copies of all witness statements and notes of the investigators. The disclosure should be made by counsel to the Board after a diligent review of the course of the investigation. Where information is withheld on the basis of its irrelevance or a claim of legal privilege, counsel should facilitate of review of these decisions, if necessary. The absence of a request for disclosure, whether it be for additional disclosure or otherwise, is of no significance. The obligation to make disclosure is a continuing one.
Many self governing bodies have by statute the authority to compel their members to give statements under oath and to produce documents. The issue arises where those powers are invoked for the purposes of an investigation, and where answers are given and documents are provided by witnesses who in turn are at a later date prosecuted on the basis of the evidence obtained through this compellable process. This matter was dealt with in the Supreme Court of British Columbia in British Columbia (Securities Commission) v. Branch  2, R.C.S 3.
where the conduct under investigation is also the subject of a criminal investigation, the police will probably urge the regulator to postpone its use of its summoning power until after the police investigation is completed for fear of creating a derivative use immunity.
Like the labyrinth at Knossos, a regulatory body must embark on the correct pathway in order to protect the public interest. It's duty is not as one would recall in an old western movie - "to add another notch in the six shooter".
That pathway normally commences with the presentation of a valid complaint - hopefully not one borne out of vindictiveness by a former employee or associate who wished to "get even" with the member.
A fair assessment of the complaint must be made promptly and that assessment should be re-visited during the process, while at all times remembering that there is a presumption of innocence.
A regulatory body which fails to follow the appropriate process and to apply the doctrine of fairness does a disservice to the public by failing to appropriately deal with a member of their profession. The test is the proper prosecution (not the persecution) of the professional.

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Miranda warnings. Under the circumstances of the case, the Court concluded that it would have been reasonable for the suspect to regard the two phases of the interrogation as a continuum, especially since the officer referred back to the earlier admissions. The mere recital of Miranda warnings in the middle of this continuous interrogation was not sufficient to separate the two phases in suspect’s mind. Therefore, she would have concluded that it would be unnatural for her not to repeat the same information she had just given. She would not have understood that she had a choice about continuing to talk.
Miranda warnings.” “Administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible.” However, no cleansing warning required. See also United States v. Lichtenhan , 40 M.J. 466 (C.M.A. 1994).
United States v. Phillips , 32 M.J. 76 (C.M.A. 1991). An unwarned statement obtained without actual coercion does not presumptively taint a subsequent, warned statement. Government must prove by a preponderance of the evidence, however, that the warned statement was voluntary and was not obtained by using the earlier statement. If the initial statement is the product of actual coercion, duress, or inducement, it presumptively taints subsequent warned statements. Cleansing warnings, although not legally required, will help show voluntariness. Cf . United States v. Torres , 60 M.J. 559 (A.F. Ct. Crim. App. 2004).
United States v. Steward , 31 M.J. 259 (C.M.A. 1990). Mere “technical violations of Article 31(b)” do not presumptively taint subsequent warned statements. The appropriate legal inquiry in these types of cases is whether his subsequent confession was voluntary considering all the facts and circumstances of the case, including the earlier technical violation of Article 31(b).
United States v. Brisbane , 63 M.J. 106 (C.A.A.F. 2006). Where an earlier statement is “involuntary” only because the accused has not been properly warned of his Article 31(b) rights, the voluntariness of the second statement is determined by the totality of the circumstances. The earlier unwarned statement is a factor in this total picture, but it does not presumptively taint the subsequent statement. If a “cleansing warning” has been given — where the accused is advised that a previous statement cannot be used against him — that statement should be taken into consideration. If a cleansing statement is not given, however, its absence is not fatal to a finding of voluntariness.
Miranda rights warning. Immediately after making these statements, a CID agent entered the interview room, identified himself, and obtain a third incriminating statement without advising the suspect of his Article 31 rights. Four days later, the suspect was called to the CID office and advised that his prior statement was given with what “may not have been a proper rights advisement.” The suspect was then asked whether he would be willing to make another statement. He did. While the court suppressed the first (unwarned) statement to CID, the second statement was found to be voluntary under the totality of the circumstances despite the fact the accused had not been specifically informed that his first statement to CID might be inadmissible.
United States v. Allen , 59 M.J. 478 (C.A.A.F. 2004); United States v. Cuento , 60 M.J. 106 (C.A.A.F. 2004).
Michigan v. Tucker , 417 U.S. 433 (1974). Police failure to advise appellant of his right to appointed counsel did not require that the testimony of a witness identified in appellant’s statement be suppressed.

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International humanitarian law (IHL) in general and the Geneva Conventions in particular, establish obligations for belligerents and rights for persons who may be victims of the violence engendered by situations of conflict. The main obligations undertaken by the parties to a conflict are to refrain from committing acts that are prohibited and to fulfill their responsibilities toward civilians and other persons protected by IHL.
To further protect or assist these persons, international humanitarian law confers a right of initiative to the International Committee of the Red Cross (ICRC) and other impartial humanitarian organizations, entitling them to offer their services and act in the absence of law and rights. The Geneva Conventions forbid parties to the conflict to refuse such services, unless the parties can demonstrate that they are not needed, and also forbid parties to regard offers of services as interference in their internal affairs.
The laws also establish punishment that can be imposed in case IHL is violated.
Unfortunately, these obligations and sanctions are not enough to guarantee the daily protection and survival of populations at risk, which is the main objective of IHL. Hence, it is very important that humanitarian and relief organizations know their rights and obligations under international humanitarian law and are able to provide aid and protection to the populations in danger along this fundamental spirit: humanitarian initiative and action must precede humanitarian law.
International humanitarian law thus creates a balance between judicial protection and immediate concrete initiatives to safeguard the lives and interests of the persons protected by IHL.
The drafters of, and parties to, the Geneva Conventions recognized the value of having neutral intermediaries (e.g., humanitarian organizations) play a role in situations of conflict.
International humanitarian law does not rely only on justice and tribunals to enforce the respect for its provisions and punish violations thereof. It is a law of action that seeks to preserve life in situations of emergency. To this effect, it entrusts impartial humanitarian organizations with the responsibility of intervening to help protect individuals and populations in danger.
In addition to the specific provisions defending relief and protection actions and duties, the Geneva Conventions entitle the ICRC and other impartial humanitarian organizations to a general right of initiative (GCI–IV Common Art. 3). Concretely, the ICRC and NGOs can conceive of and initiate the kinds of actions that will best ensure protection for and assistance to victims. The Geneva Conventions specify that such activities may in no circumstances be regarded as interference in the internal affairs of a State. Parties to the conflict must facilitate rapid and unimpeded passage of all relief supplies, equipment, and personnel (API Art. 70, Rule 55 of the 2005 ICRC customary IHL study).
International humanitarian law thus reinforces the rights of humanitarian organizations in situations of conflict. If these organizations have poor knowledge of these laws, they risk weakening not only their own rights but also those of the individuals they seek to assist.
Impartial humanitarian organizations have several advantages over other actors: they have the trust of the belligerents (having negotiated their presence with them), their objective is to protect non-combatants, and they have the means to provide relief directly and efficiently to populations threatened by shortages or violence. Thus, they already play an official role in the system of protection foreseen by the law of armed conflict. The Geneva Conventions make direct reference to protecting powers or their substitutes, neutral and impartial intermediaries, the ICRC and any other impartial humanitarian organization, relief societies, and so on.
Such organizations have rights detailed explicitly in the Geneva Conventions. Their general right of initiative extends to any humanitarian activity or issue, which means that they also can offer their services for activities and in situations that are not expressly provided for in the Geneva Conventions or their Additional Protocols.
The “right of initiative” itself is clearly established in Common Article 3 to the four Geneva Conventions and is reiterated in other articles of international humanitarian law (GCI–III Art. 9, GCIV Art. 10, API Art. 81, and APII Art. 18).
This right entitles any impartial humanitarian organization (the ICRC is mentioned explicitly as being such an organization) to offer its services in the context of a conflict. States Parties to the Conventions undertake not to regard such acts as interference in their internal affairs or as “unfriendly acts,” and, in fact, they must facilitate rapid and unimpeded passage of all relief supplies, equipment, and personnel (API Art. 70). They may not refuse such offers for political motives or reasons related to the conflict.
The provisions establishing this right are aimed at ensuring that States do not interpret and apply the rules set forth by the Geneva Conventions in ways that limit or infringe on the protection to which the victims of conflicts are entitled. Thus, one of the Geneva Conventions’ goals is to free humanitarian organizations from unnecessarily restrictive interpretations of humanitarian law’s provisions. For this reason, they posit that States must not use or interpret any of the Conventions’ provisions in a way that constitutes an “obstacle to the humanitarian activities which the ICRC or any other impartial humanitarian organization may, subject to the consent of the Parties to the conflict concerned, undertake for the protection of civilian persons and for their relief” (GCI–III Art. 9, GCIV Art. 10).
Hence, humanitarian law—and in particular, the Geneva Conventions—grants a right of initiative—known as the “right of humanitarian initiative”—to the ICRC and any other impartial humanitarian organization. This seems to exclude other actors wishing to undertake humanitarian actions, such as States.
The ICRC reinforces its own right of initiative in its statute, which authorizes it to “take any humanitarian initiative which comes within its role as a specifically neutral and independent institution and intermediary, and may consider any question requiring examination by such an institution” (Art. 4.2 of the ICRC Statute).
For Additional Information: ICRC. Human Rights and the ICRC: International Humanitarian Law . Geneva: ICRC, 1993.
Mackintosh, Kate. “Beyond the Red Cross: The Protection of Independent Humanitarian Organizations and Their Staff in International Humanitarian Law.” International Review of the Red Cross 865 (March 2007): 113–30.

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The defense made two claims in response to these charges: first, that Silver had not violated any state laws, which permitted assembly members to earn referral fees and outside income; and, second, that the arrangement between Glenwood, Witkoff, and Silver was not quid pro quo. A more telling feature of the defense’s argument, however, painted Silver as a symbol of immigrant success and advancement. Far from a crony of corporate real estate, Silver was a humble family man who had lived his entire life on the Lower East Side. A first generation Jewish immigrant, Silver had gone from the son of a hardware store owner to the Speaker of the Assembly, in turn becoming a leading voice for a small but active Orthodox constituency residing in a series of co-ops along Grand Street. These residents – and Silver – represented a living link to the Lower East Side’s storied immigrant past.
Silver’s real estate connections – and these arguments – hint at both the real and imagined power Jews continued to hold on the late twentieth century Lower East Side. Indeed, the Jewish Daily Forward notes that the “troika of neighborhood power brokers that dominated local politics – Silver, William Rapfogel, the leader of the Metropolitan Council on Jewish Poverty, and Heshy Jacob, the head of the United Jewish Council (UJC) – has only recently faded. Nevertheless, scholars of urban and American Jewish history have yet to explore the origins, development, and influence of this “troika,” preferring to analyze the Lower East Side solely through the lens of early twentieth century immigrant life.
Jewish leaders like Silver, however, played a significant role in shaping Lower East Side policy during and after the 1970s. At this time, these leaders helped bring about an “era of big development” in the neighborhood, particularly within the Seward Park Extension, an urban renewal area located just north of Grand Street. Silver and others viewed the Seward Park Extension as an important political base, a middle class enclave, and a symbolic tie to the Lower East Side’s Jewish past. To support their political influence, the UJC and Silver sought to limit low-income housing developments and build market-rate, luxury housing in the Extension. These actions reaffirmed broader waves of gentrification on the Lower East Side, particularly in new upscale areas like the East Village and Alphabet City, and reinforced the opportunities provided to high-end real estate and finance across New York at the time. As shown through Silver’s defense, Orthodox leaders on the Lower East Side ground this pro-growth agenda in a collective vision of neighborhood history that romanticized immigrant Jewish life and social mobility. The story of urban renewal in the Seward Park Extension thus suggests that the Lower East Side remained a key site for the development of both urban policy and Jewish politics long after the early twentieth century.
Plans to redevelop the Seward Park Extension date back to the late 1950s, when the Board of Estimate labeled a bloc of land north of Seward Park between Delancey and Grand Street a “substandard area.” In early 1959, the Urban Renewal Administration set aside over seven million dollars of federal money to redevelop this territory. Six years later, the Housing and Redevelopment Board (HRB) proposed to build 1,800 new apartments in the Seward Park Extension, reserving 1,240 for middle-income families and 200 for the elderly. According to the agency, these changes would “replace a warren of antiquated, worn-out, and neglected buildings with a...healthy mixture of low and moderate income residency.” Importantly, the HRB also called for the city to construct two new public housing projects for Seward Park Extension residents displaced by urban renewal. While both the City Planning Commission and Board of Estimate approved this plan in 1965, controversies over tenanting the new projects and developing the site, chiefly between Jewish groups and Puerto Rican residents, repeatedly stalled these redevelopment efforts.
It was not until 1988 when the Koch administration – engaged in policy debates about the fate of abandoned city-owned, or in rem, land – issued a new redevelopment proposal for the Seward Park Extension. Under the plan, the Lefrak Organization would buy one Extension site for $1 and sell 400 new condominiums there at market value. The company would then combine the revenue from these sales with a municipal subsidy of $25,000/unit to construct 800 middle and moderate-income rental apartments elsewhere on the Extension site. To earn tax exemptions on the properties, Lefrak also agreed to reserve 20 percent of these new rental units for low and moderate-income families.
While the mainstream press praised the plan, it failed to bridge the political gap between two main Lower East Side constituencies: the United Jewish Council (UJC), a Grand Street social agency that served the neighborhood’s elderly Jewish population, and the Joint Planning Council (JPC), an umbrella organization comprised mostly of religious and civic groups representing low-income Puerto Rican residents. Throughout the 1980s, the UJC and JPC offered sharply contrasting visions of urban redevelopment. While the former backed the Lefrak proposal, the latter viewed the plan’s stipulations and income requirements as a sell out to real estate that would accelerate Lower East Side gentrification.
In the late 1980s, the JPC lobbied Manhattan Borough President and future mayor David Dinkins to revise the Lefrak plan. While Dinkins remained non-committal, he promised the JPC that the agency’s “concerns over the future of the Seward Park site would be relieved” if he became mayor in 1989.
Initially, Dinkins followed through on his promise. In 1991, Felice Michetti, Commissioner of the Department of Housing and Preservation (HPD), worked with the JPC, the New York City Housing Authority (NYCHA), and other members of the Dinkins administration to find additional sites for new NYCHA units recently distributed by the Department of Housing and Urban (HUD). After an exhaustive search, HPD officials pitched the idea of building these complexes in tandem with middle-income housing on the Seward Park Extension. By the end of 1991, Dinkins had signed off on this proposal. The new NYCHA-HPD plan reserved one-third of the Lefrak site for public housing and the remaining two-thirds of the site for moderate and middle-income housing. Importantly, the proposal eliminated luxury housing from the Seward Park Extension.
As it worked to implement the NYCHA-HPD plan, the Dinkins administration equated the JPC’s position with the interests of the entire Lower East Side, a sign that Dinkins recognized the neighborhood’s low-income needs. In November 1991, for instance, Felice Michetti backed the proposal in a letter to Deputy Mayor Barbara Fife because it provided the “long-term affordability for the low-income units that the community has long sought.” In this same letter, Michetti told Fife that NYCHA head Laura Blackburne had recently met with the “Lower East Side community” to outline the NYCHA-HPD proposal. The memo also compared this proposal favorably to other mixed-income plans “much heralded by the Lower East Side community.” At a meeting between NYCHA Chair Laura Blackburne and the JPC, NYCHA staffers also distinguished between the Lower East Side “community” from the “Grand Street community.” In so doing, they viewed groups like the UJC not as representatives of the entire Lower East Side, but as a vocal minority residing within a particular sector of the neighborhood.
The JPC enunciated a similar vision of the Lower East Side in letters to Dinkins about implementing the NYCHA-HPD plan. In June 1992, Reverend Kevin P. O’Brien, the Regional Vicar for southern Manhattan, speaking on behalf of twenty-one Catholic churches in the neighborhood, argued that the proposal maintained the “economic and social viability of the City of New York’s low-income neighborhoods” by injecting them with mixed-income housing and new commercial space. O’Brien ground this idea in a specific view of the Lower East Side past, arguing that the neighborhood had historically housed the “low income and working families from around the World who have come to this community seeking opportunity” – the “struggling people” who had immigrated and migrated to the neighborhood and had practiced in the church for the past “170 years.” Other JPC organizations made similar claims. In a letter to Dinkins, Shawn G. Demunnick, a reverend from St. Mary’s church, located just south of the Seward Park Extension, told the mayor that his Lower East Side policies could uphold his vision of New York City as a “great mosaic.” In the letter, Demunnick alluded to the neighborhood’s constant “Immigrant Population” and argued that the “need for housing remains constant and crosses all ethnic boundaries.” These claims thus situated blacks and Puerto Ricans within a both real and imagined history of social activism on the Lower East Side and illustrated the ways in which Lower East Side history remained a highly contested tool for political conflict in the early 90s.
These statements, however, did little to assuage the UJC’s criticism of Dinkins. In the late 1980s, the agency pressured Dinkins to take a formal position on Seward Park Extension housing issues. When he did not, the UJC accused Dinkins, then Manhattan Borough President, of caring little about “preserving the Jewish community in the area.” By the end of 1987, Herbert Block, Dinkins’ aide to Jewish communities across New York, specifically noted that the “UJC is likely upset that we have not taken a position on what should be done with the [Seward Park Extension] site and have not followed up on this issue with them.” UJC leaders then lobbied Dinkins against the NYCHA-HPD plan in 1992 and 1993. Rabbi Yitzchok Singer, the UJC President, reminded Dinkins of the “importance of this property to the stability and growth of New York’s oldest and historic Jewish community.” “I would assume,” Singer continued, “that we will be contacted to join in consultation with you and your relevant staff concerning the development of plans for said site.” In May 1992, apparently having not received a response from Dinkins, UJC Executive Director Rabbi Yehuda Kravitz told the mayor that he had “totally [ignored] our past correspondence on an issue so vital to the very existence New York’s oldest and historic Jewish community.” Singer also demanded that Dinkins “contact and involve” the UJC in all future discussions about development plans for the site.
This pressure – applied as Dinkins faced major budget deficits, the prospect of further alienating Jewish voters after the city’s infamous Crown Heights riots, and a potentially close reelection campaign – led Dinkins to drop his support for the NYCHA-HPD plan. In June 1992, after hearing UJC gripes on the proposal, Dinkins aides advised the mayor not to meet with Reverend Kevin O’Brien, a local Catholic leader, partly because “the local Jewish community is not at all supportive of the plan.” By August 1992, Dinkins had cancelled three meetings with the JPC to discuss the Seward Park site, twice due to scheduling conflicts and once because the project lacked funding. In turn, JPC chairs Carlos Garcia and Valerio Orselli implored Dinkins to use his mayoral influence to get the project off the ground, reminding him that “since the Housing Authority and the HPD are ‘on board…it remains for City Hall to be the engine that drives the machine.” Three months later, Garcia wrote another letter to Dinkins reminding him that, as Borough President, he had promised that “our concerns over the future of the Seward Park site would be relieved” when he became mayor and that he had broken several promises to meet with the group.
Then, in early 1993, the JPC sent a letter to Fife praising Dinkins’ housing budget and confirming the administration’s support for the NYCHA-HPD plan. However, Fife attached a note to this letter stating that she needed to meet with Sheldon Silver before taking a position. At a subsequent meeting, Silver told Fife that the Seward Park area possessed too much low-income housing already and, perhaps confident that Dinkins would soon lose the mayor’s seat, urged the administration to delay the project until after the 1993 election. Around this time, the Dinkins administration continued to stall the NYCHA-HPD plan. When one JPC member, the Cooper Square Committee, advised the administration not to “put off sound policies because of conservative and often volatile segments of the population’s reaction,” a clear reference to the Grand Street Jewish community, Dinkins staffer Nancy Devine, reiterated that the plan deserved “broad local support” and required the administration to “work with all elements of the community.” Several months later, Fife acknowledged in a memo to Dinkins that opposition from Jewish leaders like Silver had made NYCHA hesitant to build low-income housing in the Seward Park Extension. She then advised Dinkins to turn down the JPC’s repeated requests to meet. The mayor reiterated this message in a letter to JPC Chairman Carlos Garcia that outlined the city’s budgetary issues and noted that the “future of Seward Park rests on finding a plan that has broad local support.” “To date,” the mayor told Garcia, “this has not been achieved.” In the end, the Dinkins administration, despite its earlier promises, never implemented the NYCHA-HPD plan. As a result, the Seward Park Extension would remain vacant for the next two decades.
Today, planners have at last broken ground on the Seward Park Extension, now dubbed Essex Crossing. A 1.9-million-square foot and six-acre development, Essex Crossing will include a movie theater, a bowling alley, several new commercial stores, a community center, and 1,000 new apartments, one-half of which will go to low-, moderate-, and middle-income families. In some respects, Essex Crossing reveals the decline of Grand Street as a center of Jewish political power. Before his arrest, Sheldon Silver acknowledged that the new redevelopment proposal reflected “the needs and wishes of our neighborhood,” a statement that contradicted his earlier positions on low-income housing and suggested that the Grand Street co-ops had become younger and more diverse.
Nevertheless, it took planners roughly forty years to implement a plan for the Seward Park Extension. In the late 1980s and early 1990s, Mayor Dinkins proved unable to navigate the stormy waters of ethnic, particularly Jewish-Puerto Rican, politics on the Lower East Side. His abandonment of the NYCHA-HPD plan signaled the primacy of pro-growth policies in both the neighborhood and New York as a whole. In helping block the implementation of local low-income housing alternatives, Orthodox leaders like Sheldon Silver and the UJC linked Jewish history on the Lower East Side to the broader prerogatives of corporate redevelopment and real estate. These efforts both reflected and strengthened Grand Street’s powerful standing in late twentieth century New York City politics.
Barry Goldberg is a Ph.D. Candidate at The Graduate Center, City University of New York.
 Josh Nathan-Kazis, “Sheldon Silver’s Fall Signals End of a (Jewish) Era in New York Politics,” The Jewish Daily Forward, January 22, 2015; Charles V. Bagli, “Developer Who Keeps Low Profile is Embroiled in Silver Scandal, The New York Times, January 26, 2015; Doug Chandler, “Bracing for Life Without Shelly,” The New York Jewish Week, April 13, 2016; Benjamin Weiser and Vivian Yee, “Sheldon Silver, Ex-New York Assembly Speaker, Gets 12-Year Prison Sentence,” The New York Times, May 3, 2016.
 United States of America v. Sheldon Silver, Trial Transcript, November 3, 2015, 15 Cr. 0093, 25-29, PACER (Southern District of New York. 2015); United States of America v. Sheldon Silver, Trial Transcript, November 13, 2015, 15 Cr. 0093, 1719-1720 (Southern District of New York. 2015); United States of America v. Sheldon Silver, Trial Transcript, November 23, 2015, 15 Cr. 0093, 2845, 2902-03, PACER (Southern District of New York. 2015).
 United States of America v. Sheldon Silver, Trial Transcript, November 3, 2015, 15 Cr. 0093, 2866-67, PACER (Southern District of New York. 2015).
 Josh Nathan-Kazis, “Lower East Side Development Spells Decline of Old Jewish Power Brokers,” The Jewish Daily Forward, March 4, 2013; Josh Nathan-Kazis, “Willie Rapfogel’s Downfall in Scandal Means Murky Future For Jewish Programs,” The Jewish Daily Forward, August 14, 2013.
 Jonathan Soffer, Ed Koch and the Rebuilding of New York City (New York: Columbia University Press, 2010), 259.
 City Planning Commission Summary of Seward Park Extension Plan, June 2, 1965, Citizens Housing Planning Council Papers, Box 36, Folder 8, Citizens Housing Planning Council Archives and Library (New York, NY); “Aid for City Housing: U.S. Sets Aside 7 million for Lower East Side Project,” The New York Times, January 7, 1959.
 “Housing and Redevelopment Board Finalizes Plans for a New Seward Extension,” East Side News, April 23, 1965.
 HRB Press Release, April 19, 1965, Citizens Housing Planning Council Papers, Box 36, Folder 8, Citizens Housing Planning Council Archives and Library (New York, NY).
 Ibid.; “Statement by Herbert B. Evans,” May 12, 1965, Citizens Housing Planning Council Papers, Box 36, Folder 8, Citizens Housing Planning Council Archives and Library.
 City Planning Commission Summary of Seward Park Extension Plan, June 2, 1965, Citizens Housing Planning Council Papers, Box 36, Folder 8, Citizens Housing Planning Council Archives and Library; Charles G. Bennett, “Renewal is Voted in East Side Area,” The New York Times, July 23, 1965.
 Alan Finder, “Koch and Lefrak Agree on Plan for 1,200 Middle-Income Units,” The New York Times, February 29, 1988; Alan S. Oser, “Perspectives: The Lefrak Plan, Using Condo Sales to Assist New Rentals,” The New York Times, April 10, 1988.
 Owen Moritz, “Lefrak Plan to Help Solve New York Housing Problem,” New York Daily News, March 1988, David Dinkins Papers, Housing Coordination Subject Files, Box 10, Folder 333, Municipal Archives (New York, NY); “Lefrak’s Smart Proposal to Build Subsidized Housing,” Newsday, David Dinkins Papers, Housing Coordination Subject Files, Box 10, Folder 333, Municipal Archives; “Samuel Lefrak: A Donald Trump for the Middle Class,” The New York Times, January 14, 1988; “Housing, the Koch-Lefrak Way,” The New York Times, March 17, 1988.
 United Jewish Council Annual Activity, Lower East Side Briefing Notes, June 5, 1988, David Dinkins Papers, Herbert Block Subject Files, Box 22, Folder 206, Municipal Archives; Carlos Garcia and Valerio Orselli to David Dinkins, August 12, 1992, David Dinkins Papers, Housing Coordination Subject Files, Box 10, Folder 333, Municipal Archives.
 Felice Michetti to Deputy Mayor Barbara Fife, November 14, 1991, David Dinkins Papers, Housing Coordination Subject Files, Box 11, Folder 334, Municipal Archives; “Seward Park Development Proposal,” David Dinkins Papers, Housing Coordination Subject Files Box 10, Folder 333, Municipal Archives.
 Felice Michetti to Deputy Mayor Barbara Fife, November 14, 1991, David Dinkins Papers, Housing Coordination Subject Files, Box 11, Folder 334, Municipal Archives, my emphasis; JPC to Laura Blackburne, November 13, 1991, David Dinkins Papers, Housing Coordination Subject Files, Box 11, Folder 334, Municipal Archives.
 Kevin P. O’Brien to David Dinkins, June 5, 1992, David Dinkins Papers (hereafter "DDP"), Housing Coordination Subject Files, Box 11, Folder 334, Municipal Archives (hereafter "MA").
 Shawn G. Demunnick to David Dinkins, June 3, 1993, DDP, Housing Coordination Subject Files, Box 10, Folder 333, MA.
 Herbert Block to B. Lynch et al., “United Jewish Council Mtg,” January 21, 1986, David Dinkins Papers, Herbert Block Subject Files, Box 21, Folder 205, Municipal Archives; Herbert Block to David Dinkins et al., “United Jewish Council,” January 28, 1986, David Dinkins Papers, Herbert Block Subject Files, Box 21, Folder 205, Municipal Archives.
“Manhattan Borough President Elect David Dinkins: On Louis Farrakhan,” Lower East Side Voice, Winter 1985-1986, David Dinkins Papers, Herbert Block Subject Files, Box 21, Folder 205, Municipal Archives; David Dinkins, “Preserving a People’s History,” The Jewish Press, May 29, 1987, David Dinkins Papers, Herbert Block Subject Files, Box 22, Folder 206, Municipal Archives.
 David Dinkins Speech at Lower East Side Jewish Festival, June 5, 1988, David Dinkins Papers, Herbert Block Subject Files, Box 22, Folder 206, Municipal Archives.
 Herbert Block to David Dinkins et al., “United Jewish Council – Problems,” May 31, 1987, David Dinkins Papers, Herbert Block Subject Files, Box 22, Folder 206, Municipal Archives.
 Herbert Block to David Dinkins, “United Jewish Council of Lower East Side Meeting,” November 11, 1987, David Dinkins Papers, Herbert Block Subject Files, Box 22, Folder 206, Municipal Archives.
 Rabbi Yitzchok Singer to David Dinkins, November 22, 1991, David Dinkins Papers, Housing Coordination Subject Files, Box 11, Folder 334, Municipal Archives.
 Rabbi Yehuda Kravitz to David Dinkins, May 6, 1992, David Dinkins Papers, Housing Coordination Subject Files, Box 11, Folder 334, Municipal Archives.
 Jessica Williamson to Nancy Devine, June 29, 1992, DDP, Housing Coordination Subject Files, Box 11, Folder 334, MA.
 Carlos Garcia and Valerio Orselli to David Dinkins, August 12, 1992, David Dinkins Papers, Housing Coordination Subject Files, Box 10, Folder 333, Municipal Archives; Carlos Garcia to David Dinkins, November 17, 1992, David Dinkins, Housing Coordination Subject Files, Box 10, Folder 333, Municipal Archives.
 Elaine Chan to Barbara Fife, February 9, 1993, David Dinkins Papers, Housing Coordination Subject Files, Box 10, Folder 333, Municipal Archives.
 Barbara Fife to David Dinkins, “Seward Park Urban Renewal Area,” August 16, 1993, David Dinkins Papers, Housing Coordination Subject Files, Box 10, Folder 333, Municipal Archives.
 Maria Torres Bird to Barbara Fife, January 11, 1993, David Dinkins Papers, Housing Coordination Subject Files, Box 10, Folder 333, Municipal Archives; Nancy Devine to Maria Torres Bird, January 25, 1993, David Dinkins Papers, Housing Coordination Subject Files, Box 10, Folder 333, Municipal Archives.
 David Dinkins to Carlos Garcia, August 17, 1993, David Dinkins Papers, Housing Coordination Subject Files, Box 10, Folder 333, Municipal Archives.
 Charles V. Biagli, “City Plans Redevelopment for Vacant Area in Lower Manhattan,” The New York Times, September 17, 2013; Alison Gregor, “The Lower East Side Goes from Gritty to Glossy,” The New York Times, May 29, 2015; Ronda Kaysen, “New Mixed-Income Housing on the Lower East Side,” The New York Times, July 24, 2015.
 Josh Nathan-Kazis, “Lower East Side Development Spells Decline of Old Jewish Power Brokers,” The Jewish Daily Forward, March 4, 2013.

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'SECT. 1. That whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony.
The plaintiff brought suit in a State court of New York against The Central Railroad Company of New Jersey, to recover damages for the death of her husband by an accident on the defendant's road. The company entered an appearance and removed the case into the Circuit Court of the United States, on the ground that the plaintiff was a citizen of New York and the defendant a corporation of New Jersey. The complaint filed in the Circuit Court alleges that the plaintiff was his widow, and her children were his next of kin; that she was administratrix of his estate, appointed by the proper court in New York; and that his death was caused by the negligence of the defendant. Damages in the sum of $15,000 were claimed.
The answer denied the negligence, but admitted that the death was caused by the train running off the track in New Jersey, that there were a widow and next of kin, and that the plaintiff had been appointed administratrix by the surrogate of Albany County, New York.
The parties waived a jury. The plaintiff introduced evidence tending to prove the negligence charged, whereupon the court ruled that for the death of her husband, which occurred in the State of New Jersey, she could not, under the special statute of that State, recover in the action. Judgment was rendered for the defendant. The plaintiff then sued out this writ of error.
The court below having acquired jurisdiction of the parties had full power to pass upon their relative rights and liabilities. The judicial power of every government looks beyond its municipal laws, and, in civil cases, between parties within its jurisdiction, lays hold of all subjects of litigation, though they are relative to the laws of the most distant part of the globe. The Federalist, No. 82. Rights which have accrued by the law of a foreign State are treated as valid everywhere; cognizance is therefore taken of extra-territorial facts, and of persons not generally subject to the jurisdiction. Westlake, Private Int. Law, p. 54, sect. 58.
In the jurisprudence of England, transitory actions at common law were entertained against, and at the suit of, any British subject or alien friend, wherever the cause of action really arose, if process might be served upon the defendant. Id. p. 105, sect. 120; 3 Stephen, Com. 451; 4 Phillimore, Int. Law, 648. Nor was there any distinction in this respect whether the cause of action was ex contractu or ex delicto. Rafael v. Verelst, 2 W. Bl. 983, 1055; Scott v. Seymour, 1 H. & C. 219; Phillips v. Eyre, Law Rep. 6 Q. B. 1; Madrazo v. Willes, 3 Barn. & Ald. 353; Mostyn v. Fabrigas, Cowp. 161; De la Vega v. Viana, 1 Barn. & Ad. 284; 1 Sm. L. C. 340.
The same principle has been recognized and applied without qualification in the courts of this county to cases arising on contracts: Cox v. United States, 6 Pet. 172; Caldwell v. Carrington, 9 id. 86; Green v. Van Buskirk, 7 Wall. 139; King v. Sarria, 69 N. Y. 24; Barrell v. Benjamin, 15 Mass. 354; Roberts v. Knight, 7 Allen (Mass.), 449; Miller v. Black, 2 Jones (N. C.) L. 341; Ruse v. Mutual, & c. Insurance Co., 23 N. Y. 516; and to personal injuries or torts: McKenna v. Fisk, 1 How. 241; McCormick v. Pennsylvania Railroad Co., 49 N. Y. 303; Boynton v. Boynton, 43 How. Ap. Cas. 383; Johnson v. Dalton, 1 Cow. (N. Y.) 543; Smith v. Bull, 17 Wend. (N. Y.) 323; Stout v. Wood, 1 Blackf. (Ind.) 71; Lister v. Wright, 2 Hill (N. Y.), 320; Gardner v. Thomas, 14 Johns. (N. Y.) 134; Glen v. Hodges, 9 id. 68; Smith v. Butler, 1 Daly (N. Y.), 508; McIvor v. McCabe, 26 How. Ap. Cas. 257; Hull v. Vreeland, 42 Barb. (N. Y.) 543; Latourette v. Clark, 45 id. 327; De Witt v. Buchanan, 54 id. 31; Newman v. Goddard, 3 Hun (N. Y.), 70; Watts v. Thomas, 2 Bibb (Ky.), 458; Wall v. Hoskins, 5 Ired. (N. C.) L. 177; Shiff v. McCrow, 3 Murphy (N. C.), 463; Walters v. Breeder, 3 Jones (N. C.) L. 64; Northern Central Railroad Co. v. Scholl's Ex., 16 Md. 332; Great Western Railway Co. v. Miller, 19 Mich. 305; Ackerson v. Erie Railroad Co., 31 N. J. L. 309.
As the rule is founded on the principle of comity, the foreign law, if not contrary to the public policy of the country where the suit is brought, nor to abstract justice or pure morals, will be recognized and enforced. King v. Sarria, 69 N. Y. 24; Phillips v. Eyre, Law Rep. 6 Q. B. 1; Wall v. Hoskins, supra.
It is no objection that all the parties to the suit are aliens or non-residents, and that the cause of action arose abroad. Rafael v. Verelst, supra; Johnson v. Dalton, 1 Cow. (N. Y.) 543; Mason v. Ship Blaireau, 2 Cranch, 240; Barrell v. Benjamin, 15 Mass. 354; Roberts v. Knights, 7 Allen (Mass.), 449; Watts v. Thomas, 2 Bibb (Ky.), 458; De Witt v. Buchanan, 54 Barb. (N. Y.) 31; Newman v. Goodard, 3 Hun (N. Y.), 70; Latourette v. Clark, 45 Barb. (N. Y.) 327; Smith v. Spinola, 2 Johns. (N. Y.) 198; Gardner v. Thomas, 14 id. 134; Smith v. Butler, 1 Daly (N. Y.), 508; Melan v. Fitzjames, 1 Bos. & Pul. 138; Miller v. Black, 2 Jones (N. C.) L. 341; McCormick v. Pennsylvania Railroad Co., 49 N. Y. 303; De la Vega v. Viana, 1 Barn. & Ad. 284; Walters v. Breeder, 3 Jones (N. C.) L. 64; Ruse v. Mutual, &c. Insurance Co., 23 N. Y. 516; Ackerson v. Erie Railroad Co., 31 N. J. L. 309.
If, however, in this respect, the rule as between subjects or citizens of different nations were otherwise, it would not affect the right of a citizen of one State to sue in the courts of another, as under the Federal Constitution he is entitled to all privileges and immunities of citizens in the several States, including the right of resorting to the same legal remedies. Barrell v. Benjamin, 15 Mass. 354: McIvor v. McCabe, supra; Miller v. Black, supra; Bank of Augusta v. Earle, 13 Pet. 520.
The rule has been specially applied to foreign corporations; and actions have been sustained in the courts of one State for injuries to persons and property, caused by negligence in operating railways in other States. Bissell v. Michigan Railroad Co., 22 N. Y. 258; McCormick v. Pennsylvania Railroad Co., supra; Howe Insurance Co. v. Pennsylvania Railroad Co., 11 Hun (N. Y.), 182.
There is no reason in morals, justice, or policy why the same rule should not be applied to all transitory actions for injuries to persons and property, whether recognized by the common law, or created by statute to meet new exigencies of modern life. The claim of comity, on which the rule is founded, is as urgent and unanswerable in the one case as in the other. Stallknecht v. Pennsylvania Railroad Co., 13 Hun (N. Y.), 451; Ex parte Van Riper, 20 Wend. (N. Y.) 614; Lowry v. Inman, 46 N. Y. 119.
A personal liability created by the statute of another State will, as other personal obligations, be enforced according to the course of procedure in the place where the defendant is found. Lowry v. Inman, supra; Pickering v. Fisk, 6 Vt. 102; Railroad v. Sprayberry, 8 Bax. (Tenn.) 341; McDonald v. Mallory, 77 N. Y. 547; Whitford v. Panama Railroad Co., 23 id. 465; Vandeventer v. New York & New Haven Railroad Co., 27 Barb. (N. Y.) 244; Great Western Railway Co. v. Miller, 19 Mich. 305; Selma, & c. Railroad Co. v. Lacy, 43 Ga. 461.
The statute in question has no extra-territorial force, and it gives a cause of action only to a personal representative appointed in New Jersey when the death occurred in that State. Mackay, Admx., v. Central Railroad Co. of New Jersey, 14 Blatchf. 65; Whitford v. Panama Railroad Co., 23 N. Y. 465; Beach v. Bay State Co., 30 Barb. (N. Y.) 433.
The alleged injury in this case was received in New Jersey, and the intestate died there. The question therefore arises whether the damages which her statute authorizes his personal representative to sue for and obtain for the benefit of his widow and next of kin can be recovered by an administrator appointed under the laws of New York.
An administrator takes his title by force of the grant of administration. Marcy v. Marcy, 32 Conn. 308. The laws of the State in which he is appointed prescribe his rights, powers, and duties. Another State cannot impose upon him different liabilities or obligations. He is the creature of the local law, and, until additional authority is derived by virtue of an appointment in another jurisdiction, he has only the power which that law confers.
The plaintiff sets up, not a right to her property, or to that which belonged to the deceased, but a right to sue as the trustee of a fund which may be obtained for his widow and next of kin, a position which she, by the law under which she was appointed, does not sustain. In order to execute such a trust, the trusteeship must attach to her appointment as administratrix under the laws of New York, and they do not confer upon her the right to damages for injuries received by him in another State, and resulting in his death. Richardson v. New York Central Railroad Co., 98 Mass. 85; Woodward v. Michigan Southern, & c. Railroad Co., 10 Ohio St. 121; Armstrong v. Bendle, 5 Sawyer, 485; McCarthy v. Chicago, Rock Island, & Pacific Railroad Co., 18 Kan. 46; Maryland v. Pittsburg & Connellsville Railroad Co., 45 Md. 41; Needham, Admx., v. Grand Trunk Railroad, 38 Vt. 294; Illinois Central Railroad v. Cragin, Admr., 71 Ill. 177.
First, The plaintiff's right as administratrix to recover for the 'pecuniary injury resulting from death to the widow and next of kin' is unknown at common law, and can exist only by statute.
Second, The statute of New Jersey, under which she sues, has no extra-territorial force. It gives a cause of action for this 'pecuniary injury' only when the death occurs within the State of New Jersey.
Third, In like manner, the statute of New Jersey has no extra-territorial force to confer upon a creature of the New York law powers and duties other than those bestowed by the laws of New York.
Mr. Amasa J. Parker for the plaintiff in error.
Mr. Henry G. De Forest for the defendant in error.

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