ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK
White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke
MR. JUSTICE CLARKE delivered the opinion of the court.
The Erie Railroad Company was sued in the State of New York by the defendant in error to recover damages
for the claimed negligent causing of the death of Stephen Mistschook, who was a subject of the Emperor of Russia and who left surviving him a wife and three children resident in Russia.
After denying negligence and liability, the company averred that it had settled the claim with the Russian Consul resident at New York, who, acting under authority of the treaties between the United States and the Emperor of Russia, and in behalf of the widow and next of kin of the deceased, had executed in due form of law and, for the consideration of $400, had delivered a release of all claims and demands arising from the death complained of.
The claim at the trial was not, and it is not now, that the Russian Treaty of 1832 (8 Stat. 444, 448, Art, VIII,) in terms gave the consul the power to make the settlement relied upon, but that under the treaty of the United States with Spain, invoked through the "favored nation" paragraph of the Russian treaty, he had power to make it.
The trial court held that the Russian consul had no authority to make the settlement pleaded or to give a valid release, and the judgment recovered by the plaintiff (the defendant in error), affirmed by the proper Appellate Division of the Supreme Court and by the Court of Appeals, is argued as if properly before us for review on writ of error.
Since the judgment which plaintiff in error seeks to review was entered on December 12, 1916, the record presents the question whether writ of error or writ of certiorari was the appropriate remedy for bringing the case into this court under § 237 of the Judicial Code, as amended by Act of Congress, approved September 6, 1916 (39 Stat. 726).
From the statement of the case which we have made it is clear that the railroad company has relied throughout the litigation upon the validity of the treaty of the United States with Russia and that it has claimed rights under a
construction of that treaty which were denied by the defendant in error and by the New York courts. What the proper construction of the treaty ...