Geoghegan v. Atlas Steam-Ship Co.

Bookstaver, J. The action in which the motion was made is brought to recover damages from the defendant for the alleged death of plaintiff’s intestate, caused, as it is claimed, by the negligence of defendant in the harbor of Savanilla, republic of Colombia. The learned judge who heard the motion says in his opinion it was conceded on the argument by plaintiff’s counsel that the sole object of the proposed commission was to secure proof of a certain statute law of the republic of Colombia, and its interpretation in the country. Ho other ground for the motion is suggested by the moving papers. They do not show that there is any ambiguity or uncertainty in the meaning of the law, or that it has received any judicial interpretation in that republic, or that it cannot be proved under section 942 of our Code. We think the latter fact, at least, must be made to appear, before the court would be authorized to grant the commission. It has been held that the statute law of another state cannot be proved by paroi. Toulandou v. Lachenmeyer, 6 Abb. Pr.(N. S.) 215; Kenny v. Clarkson, 1 Johns. 385. But, if the object of the commission had been stated in the papers to be to prove the construction and interpretation of this foreign statute, the opinion of the person sought to be examined would not be admissible to prove it. Where the evidence of a foreign law consists entirely of a written document, statute, or judicial opinion, the question of its construction and effect is for the court to determine; and evidence of a lawyer of another state or country as to what, in the opinion of lawyers there, should be the construction of a statute of that state or country, is not admissible where the language of the statute is plain, and there is no decision by the courts of that state or country upon the points in controversy. Bank v. Boardman, 47 Hun, 142; Kline v. Baker, 99 Mass. 255; Bank v. Wood, 142 Mass. 564, 8 N. E. Rep. 753; Hennessey v. Farrelly, 13 Daly, 468; Dupuy v. Wurtz, 53 N. Y. 571. The motion was therefore properly denied, and the order appealed from should be affirmed, with costs.