A338 y NEW YORK (STATE). LAWS, STAT- UTES, ETC. MEW YORK WORKMEN* S COMPENSATION ACT AND DECISIONS OP THE STATE - ■ INDUSTRIAL COMMISSION. t t , ■% • 4 to- ' • ■ ■ - ■ - X * ■* GJnrndl Ham ^dyool IGibran} NEW YORK WORKMEN'S COMPENSATION A CT AND DECISIONS OF THE INDUSTRIAL COMMISSION Cornell University Library KFN5592.A338A2 1916 New York Workmen's compensation act and 3 1924 022 789 352 WITH REFERENCES TO NEGLIGENCE AND COMPENSATION CASES ANNOTATED JOHN MITCHELL, Chairman LOUIS WIARD EDWARD P. LYON WILLIAM H. H. ROGERS JAMES M. LYNCH I CHICAGO CALLAGHAN AND COMPANY 1916 COPYRIGHT 1916 BY CALLAGHAN & COMPANY NEW YORK APPENDIX In the following appendix the New York Workmen's Compensation Act is set out in full, being annotated thoroughly with the decisions of the State Workmen's Compensation Commission and its successor the State Industrial Commission, and late Appellate Division and Court of Appeals decisions, together with a number of the latest British cases construing like or similar provisions of the English Act. In addition to the cases reproduced in whole or in part in these annotations, specific references are made to N. C. C. A. where all of the American and several hundred British cases (covering the most important decisions of the English Court of Appeal and the House of Lords), are rendered accessible. This appendix, which is presented to the New York subscribers to N. C. C. A. with the compliments of the publishers, is an exhaustive anno- tation of the New York Act, with decisions accessible in no other publication, thus enabling the user to see at a glance not only the latest construction placed upon the act by the state courts and State Work- men's Compensation Commission and its successor the State Industrial Commission, but also the construction placed upon like or similar provi- sions in other compensation acts by the courts and Industrial Boards or Commissions of other states and by the final tribunals of England. Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022789352 NEW YORK WORKMEN'S COMPENSATION ACT SHORT TITLE; APPLICATION; DEFINITIONS. U 1. Short title}. U 2. Application. II 3. Definitions. COMPENSATION. U 4. Liability for compensation. U 5. Alternative remedy. U 6. Compensation not allowed for first two weeks. U 7. Treatment and care of injured employees. 11 8. Weekly wages basis of compensation. 11 9. Schedule in case of disability. U 10. Death benefits. Ull. Aliens. 11 12. Notice of injury. 11 13. Medical examination. 11 14. Determination of claim for compensation. IT 15. Advances to employee. 11 16. Presumptions. H 17. ■ Modification of award. U 18. Appeals from the commission. 11 19. Costs and fees. 11 20. Compensation, how payable. 11 21. Enforcement of payment in default. U 22. Depositing future payments. -U 23. Limitation of right to compensation. II 24. Subrogation to remedies of employee. 11 25. Eevenues or benefits from other sources not to affect compensa- tion. 11 26. Agreement for contribution by employee void. (1147) 1148 10 Negligence and Compensation Cases Annotated. 11 27. Waiver agreements void. 1128. Assignments; exemptions. H 29. Preferences. SECURITY FOR COMPENSATION. H 30. Security for payment of compensation. K 31. Posting of notice regarding compensation. H 32. Effect of failure to secure compensation. II 33. Release from all liability. H 34. The insurance contract. STATE WORKMEN'S COMPENSATION COMMISSION.- U 35. Industrial commission created. 11 36. Workmen 's compensation commission abolished. U 37. Rules and regulations continued ; pending actions or proceedings. II 38. Construction. f 39. Expenses. 1140. Office. U 41. Sessions of commission. 11 42. Powers of individual commissioners and deputy commissioners. H 43. Powers and duties of secretary. U44. Rules. ^ 11 45. Technical rules of evidence or procedure not required. U 46. Issue of subpoena ; penalty for failure to obey. 11 47. Recalcitrant witnesses punishable as for contempt. f 48. Fees and mileage of witnesses. U49. Depositions. H50. Transcript of stenographer's minutes; effect as evidence. U 51. Jurisdiction of commission to be continuing. II 52. Report of commission. U 53. Commission to furnish blank forms. STATE INSURANCE FUND. 11 54. Creation of state fund. IF 55. State treasurer custodian of fund. U 56. Surplus and reserve. 11 57. Investment of surplus or reserve. 11 58. Administration expense. U 59. Classification of risks and adjustment of premiums. New York Appendix. 1149 1160. Associations for accident prevention. H 61. Requirements in classifying employment and fixing and adjust- ing premium rates. U 62. Time of payment of premiums. 11 63. Action for collection in case of default. 11 64. Withdrawal from fund. U 65. Audit of payrolls. 11 66. Falsification of payroll. U 67. Wilful misrepresentation. U 68. Inspections. 11 69. Disclosures prohibited. MISCELLANEOUS PROVISIONS. 11 70. Penalties applicable to expenses of commission. II 71. Record and report of injuries by employers. U 72. Information to be furnished by employer. H 73. Inspection of records of employers. U 74. Interstate commerce. U 75. Penalties for false representation. 11 76. Limitation of time. f 77. Duties of commissioner of labor. 11 78. Unconstitutional provisions. 11 79. Actions or causes of action pending. LAWS REPEALED ; WHEN TO TAKE EFFECT. 1180. Laws repealed. U 81. When to take effect. 1182. When compensation act effective. An act to re-enact and amend the workmen's compensation law. Became a law March 16, 1914, with the approval of the Governor. Passed, three-fifths being present. Laws 1914, c. 41. Section 1. Chapter eight hundred and sixteen of the laws of nineteen hundred and thirteen, entitled "An act in relation to assuring compensa- tion for injuries or death of certain employees in the course of their employment and repealing certain sections of the labor law relating thereto, constituting chapter sixty-seven of the consolidated laws," is hereby re-enacted and amended to read as follows: 1150 10 Negligence and Compensation Cases Annotated. H 1 Article 1. SHORT TITLE APPLICATION DEFINITIONS. HI. Short title. Section 1. This chapter shall be known as the "workmen's compen- sation law. ' ' 1 1 — References to N. C. C. A. Constitutionality. — State v. Creamer (Ohio, 1912), 1 N. C. C. A. 30; Ives v. South Buffalo By. Co. (N. Y., 1911), 1 N. C. C. A. 517; Opinion of Justices (Mass., 1911), 1 N. 0. C. A. 557; Cun- ningham v. North Western Imp. Co. (Mont., 1911), 1 N. C. C. A. 720, and note; Borgnis v. Falk Co. (Wis., 1913), 2 N. C. C. A. 834, and note; Sexton v. Newark Dist. Telegraph Co. (N. J., 1913), 3 N. C. C. A. 569, and note; Borgnis v. Falk Co. (Wis., 1911), 3 N. O. C. A. 649; State v. Clausen (Wash., 1911), 2 N. C. C. A. 823, and note; (1911), 3 N. C. C. A. 599, and note; Dei- beikis v. Link Belt Co. (111., 1914), 5 N. C. C. A. 401; Matheson v. Minneap- olis St. Ry. Co. (Minn., 1914), 5 N. O. C. A. 871, and note; Zumkehr v. Dia- mond Portland Cement Co. (Ohio C. P., 1913), 4 N. C. C. A. 681; State v. Moun- tain Timber Co. (Wash., 1913), 4 N 0. C. A. 811; Memphis Cotton Oil Co. v. Tolbert (Tex. Civ. App., 1914), 7 N. C. C. A. 547; Young v. Duncan (Mass., 1914), 7 N. C. C. A. 556; Jeffrey Manu- facturing Co. v. Blagg (U. S. Sup., 1915), 7 N. C. C. A. 570; Middleton v. Texas Power & Light Co. (Tex. Civ. App., 1915), 9 N. C. C. A. 847 j West- ern Indemnity Co. v. Pillsbury (Cal., 1915), 10 N. C. C. A. 1; De Francesco v. Piney Mining Co. (W. Va., 1915), 10 N. C. C. A. 1015. Constitutionality of Ohio Workmen's Compensation Act, 9 N. C. C. A. 839- 845. Unconstitutionality of portion of workmen 's compensation act making it obligatory upon employees after elec- tion by employer, but without consent of the employees, see Middleton v. Texas Power & Light Co. (Tex. Civ. App.), 9 N. C. C. A. 847. Constitutionality of compensation acts elective as to employer but other- wise compulsory, 9 N. C. C. A. 847-862. Compulsory acceptance of act as un- constitutional, 9 N. C. C. A. 51, 52. Purpose of compensation acts, see In re Rheinwald (N. Y. App. Div.), 9 N. C. C. A. 469-471n. Class legislation, workmen's compen- sation act not invalid as, 5 IT. C. C. A. 871. Conflict of laws as affecting opera- tion of compensation acts, see 7 N. O. C. A. 144. Construction of workmen 's compen- sation acts, 9 N. C. C. A. 918. What law governs right to recover compensation, 4 N. C. C. A. 60-74n. Injury in another state from that in which contract entered into, 7 N. C. C. A. 144-152; 5 N. C. C. A. 814. Action in foreign state for injury in compensation state, 7 N. C. C. A. 148. Extraterritorial effect of workmen's compensation acts, 9 N. C. C. A. 918, 932; 4 N. C. C. A. 60-73; 3 N. C. C. A. 639-647; 10 N. C. C. A. 888. One wholly employed outside of state whether covered by compensation law although contract of employment made within state. — The employer was a general contractor with office at Horseheads, N. Y., and performed con- tracts in the states of New York, Penn- sylvania, Maine, Ohio, and wherever favorable opportunity presented itself. At times from 1902 to 1905 the dece- dent was in the employ of the company at various places. His next employ- m New Yoek Appendix. 1151 [Notes on extraterritorial effect of compensation law.] ment was in 1912, upon a job at Che- mung, N. Y. When this job was com- pleted, he returned to his home at Calli- coon, N. Y., for several months, and then was employed at Old Town, Me. While at Old Town, Me., he arranged with the company to go to , Plymouth, Pa., late in 1913, but returned home be- fore going to Plymouth. From the Plymouth job he went to an Ohio job and then returned home for two months. He was then employed by the com- pany at Towana, Pa., and when that job was nearly completed arranged with one of the company's representatives there to go to Ford City, Pa., and was to receive $4.00 per day. He went home first for a few days' vacation. He did not report at Ford City as agreed and the company wrote him from Horseheads, sending him money for transportation, and asking him to report for duty at Ford City. He used the money but did not go. The com- pany again wrote him from Horseheads, urging him to go, and finally sent him a check payable to the railroad com- pany for fare. He went to Ford City and was there killed while working on a bridge which the company was con- structing at that place. The company insured its employees who were en- gaged in work in the State of New York, pursuant to the workmen's com- pensation law. The pay rolls on jobs out of the state were not used as a basis for such insurance. It carried a general insurance covering liability for all employees not engaged within the state. From an award of compen- sation the defendants appealed. The question at issue was whether the New York Workmen's Compensation Law covered this accident, which happened at the plant of the employer at Ford City, Pa. The decision of the court was as follows: "In this case the decedent had not been employed by the appellant in the Btate since 1912. His employ- ment had not been continuous, but had been from time to time for certain jobs which were being performed entirely without the state. The contract of em- ployment did/ not contemplate any work by him within the state; no such work was done. The statute in question is intended to regulate the relations be- tween the employer and employee in hazardous employments within the state, and to protect the employee within the state from the ordinary risks of the employment, and to charge those risks upon the ultimate consumer. The mere fact that an employee is en- gaged by a resident of the state to go out of the state for service, and no service in the state is contemplated or done, cannot bring the employment within the act. Ordinarily a statute has no extraterritorial effect. But where the regular service of the em- ployee is being performed in the state, and, as an incident to it, he goes over the state line temporarily, we have held that such temporary absence from the state does not relieve the employer from liability under this statute. The rela- tion between the decedent and the com- pany with reference to the work at Ford City depended upon the laws of the State of Pennsylvania, and. the pro- tection there given to the employer and the employee. The mere fact that the contract was made in the state, if it was made in the state, is not material here, when we understand that the con- tract related solely to work to be per- formed outside of the state. It follows, therefore, that the employment of the decedent was outside of the State of New York, and that he was not an em- ployee or engaged in an employment within the state at the time of his death." The Spratt case, the Valentine case and the Post ease, 168 App. Div. 403, 153 N. Y. Supp. 505, 9 N. C. 0. A. 918, where an award for injuries received 1152 10 Negligence and Compensation Cases Annotated. ^ 1 [Notes on extraterritorial effect of compensation law.] outside of the state was affirmed, was distinguished by the court on the ground that in the former cases, the in- jured employees were regularly em- ployed within the state and their going outside of the state was an incident to their employment within the state, and that the premium of insurance was based upon the pay rolls, which in- cluded the claimants. The award was reversed and the case remanded to the commission for its fur- ther action. Gardener v. Horseheads Const. Co., — App. Div. (N. Y.) — , 156 N. Y. Supp. 899 (1915). On the ques- tion of the extraterritorial effect of the act, see Post v. Burger & Gohlke, 10 N. C. C. A. 888, decided by court of appeals. Accident happening In foreign coun- try. — The claimant was a consulting en- gineer and in the course of his duties as such went to the Province of On- tario in the Dominion of Canada to in- spect a plant which was being erected, and while in the course of his duties suffered an accident which resulted in a serious impairment of the use of one of his arms. The insurance carrier con- tended that because the accident hap- pened in a foreign country the compen- sation law did not apply. The commis- sion, on the authority of In re Post 10 N. C. C. A. 888, recently decided by the court of appeals, held that the work- men 's compensation law applied. Ken- nedy v. Kennedy Manufacturing & En- gineering Co., 1 St. Ind. Comm. Bull. (No. 5, 1916) 12. Injury to non-resident employee In state of residence — Where proceedings for compensation may be brought. — Newbukoee, J. "The complaint alleges that in the month of June, 1914, at Ft. Lee, Bergen county, N. J., defendant en- gaged plaintiff, then and now a resident of New Jersey, to do certain plastering work in said state, and that on the 18th day of June, 1914, while plaintiff was in the defendant's employ under said contract, and in the discharge of his duties, he received a certain injury, causing him to lose the use of his right hand, and that the defendant had notice of such injury. The complaint further sets out the act of the state of New Jersey known as the compensation law; that pursuant to such act plaintiff, within 14 days after the injury, caused the defendant to be notified thereof; that the plaintiff was receiving wages from the defendant at an average of $27.50 per week; that plaintiff and de- fendant have failed to agree on the claim for compensation; that pursuant to section 18 of said act, on or about the 31st day of October, 1914, plaintiff presented a verified petition to a judge of the court of common pleas for the county of Bergen, state of New Jersey, setting forth his injury and all the nec- essary information required under said section; that the judge of said court thereupon made an order requiring the defendant to appear for a hearing; that it was impossible to serve the defend- ant, which had removed its place of business to the state of New York, in which state it was incorporated, and that by reason of said injury the plain- tiff demands the sum of $1,500, as pro- vided under the laws of the state of New Jersey. ' ' The defendant had demurred to this complaint and raises the question of jurisdiction. Section 18 of chapter 95, Laws of 1911, of the .state of New Jersey, provides that in case of a dis- pute or failure to agree upon a claim for compensation between employer and employe either party may submit the claim to the judge of the court of common pleas of such county as would have jurisdiction in a civil case. It will thus be seen that the forum is provided under such law. This action, being a statutory one, must be strictly con- strued. The mere fact that the com- HI New Yobk Appendix. 1153 [Notes on extraterritorial effect of compensation law.] plaint alleges that personal service could not be obtained on the defendant is no ground for bringing the action in this court. The demurrer must be sustained." Lehmann v. Ramo Films, Inc., — App. Div. (N. Y.) — , 155 N. Y. Supp. 1032 (1915). Application of act to case of non- resident employee killed in sister state. — Deceased was a resident of New Jer- sey and was employed by the defend- ant before the passage of the compen- sation act. His employment continued up to the time of his death. While the contract of employment was entered into in New York, the deceased met with an injury resulting in death while working for the defendant in West Vir-. ginia. The question was whether his dependents were entitled to compensa- tion under the New York Workmen's Compensation Act. After referring to Post v. Burger & Gohlke, 10 N. C. C. A. 888, the commissioner said that while the court of appeals in the case cited had held that the compensation law was to be read into every contract of hiring and entitled the employee or his de- fendants to compensation no matter where the injury was received, yet the commission could act only where it could secure jurisdiction of the em- ployer. It was held that commission had no power to enforce compensation in favor of a non-resident of the state, solely for the purpose of enforcing a police power measure to prevent the de- pendents of the deceased from becoming a public charge in the state of their resi- dence. It was said: "There is another reason why our law ought not to be construed to protect the dependents of Mr. Lloyd (deceased) in this case. Had Mr. Lloyd, though a resident of New Jersey, received his fatal injuries in the state of New York, his dependents ought to have relief under our act, be- cause in that event our act would have taken away from Mr. Lloyd 's represent- I atives and next of kin their right of action for negligence, if negligence lay at the foundation of the accident, since in that event in a suit for negligence in the state of his residence, the cause of action would have to rest upon the law of the state in which he was injured. So too, the fatal accident to Mr. Lloyd having occurred in the state of- West Virginia, our statute can have no effect to deprive the next of kin of their right of action and they can, no doubt, have recourse in the state of West Virginia, either to an action at law for damages for negligence, or to a compensation law of that state, if such exists. I therefore, can see no way by which the widow can be compensated under our act and I advise that an award be de- nied. ' ' The commission acted upon the matter in accordance with this recom- ' mendation. Lloyd v. Power Specialty Co., 1 St. Ind. Comm. Bull. (No. 6, 1916) 9. Extraterritorial effect of New York Compensation Act, see Post v. Burger & Gohlke (N. Y.), 10 N. C. C. A. 888. Admiralty law and compensation acts, conflict between, 10 N. C. C. A. 688-699. Constitutionality of compensation acts, 10 N. C. C. A. 1015. Constitutional questions raised by enactment of compulsory workmen's compensation acts based upon state in- surance fund, and compensation acts modeled after British Compensation Act of 1906, 10 IT. C. C. A. 1-68. Nature of compulsion of compensa- tion acts, 10 N. C. C. A. 5-11. Obligation of contract, whether com- pulsory compensations acts violate, 10 N. C. C. A. 66-67. Trial by jury, whether right to abridged by compulsory compensation acts, 10 N. C. C. A. 61-66. Compensation acts of other states or countries, enforcement of, 10 N. C. C. A. 888. 1154 10 Negligence and Compensation Cases Annotated. ^ 2 112. Application. § 2. Compensation provided for in this chapter shall he payable for injuries sustained or death incurred by employees engaged in the follow- ing hazardous employments : 2 Group 1. The operation, including construction and repair, of rail- Construction of compensation act by state court, whether binding on federal court, Northern Pac. Ry. Go. v. Meese (U. S. Sup.), 10 N. C. C. A. 939. Injured outside of state. — The de- ceased was employed by a corporation engaged in building construction. Seventy-five per cent, of its business was done in New York City. The bal- ance was done outside the city and in the State of New York and other states. If they had several jobs it was custom- ary to transfer the men from one job to another both within and outside the State of New York. While the de- ceased was hoisting steel beams in Jersey City, N. J., by means of a der- rick a chain broke and the beams fell on him and fractured his skull which resulted in his death. An award of com- pensation was made for the benefit of his dependents. Scheier v. Hebberd & Wentz, 5 N. Y. St. Dep. Eep. 409 (1915). 2 — Hazardous employment — Whether continuous engagement in necessary to recovery. — When an employee is en- gaged in an employment declared to be hazardous, the fact that at times he engages id nonhazardous employment will not place him outside the act. Larsen v. Paine Drug Co., — App. Div. (N. Y.) — , 155 N. Y. 759 (1915). Employee of department of public works injured.— Claimant was employed by the Department of Public Works. While he was striking a bolt with a sledge hammer, a splinter from the hammer struck him in the eye causing the loss of sight of that eye. It was held that he was not entitled to com- pensation on the ground that the De- partment of Public Works was not en- gaged in a hazardous business for a pecuniary gain. Jennings v. Depart- ment of Public Works, 5 N. Y. St. Dep. Eep. 416 (1915). References to N. 0. C. A. Classification of industries constitu- tional, 1 N. C. C. A. 30, 557; 2 N. C. O. A. 823, 834; 3 N. C. C. A. 569; 5 N. C. C. A. 871; 10 N C. C. A. 42-47. What employments are hazardous within the meaning of the compensation acts, 9 N. C. 6. A. 703-717. Premises which are. covered by pro- visions as to hazardous employments, 5 N. C. C. A. 840. Power driven machinery employed in repair shop used incidentally to em- ployer's principal business as rendering work in shop extrahazardous, 5 N. C. C. A. 790. Nonoperation of dangerous machinery at time injury occurred as affecting classification of business as hazardous, 5 N. C. C. A. 840. Freight or passenger elevator, opera- tion of as extrahazardous, 8 N. C. C. A. 440. Repairing of boilers in department store, as hazardous occupation, 5 N. C. C. A. 790. Carpentering in automobile repair shop of department store as hazardous employment, 5 N. C. C. A. 790. Regulation of sale of food, whether employment placed in hazardous class by, 5 N. C. C. A. 793. Municipal regulation of department stores rendering employment hazard- ous, 5 N. C. C. A. 791. Mail order business as hazardous em- ployment, 5 N. C. C. A. 792. H2 New York Appendix. 1155 ways 3 operated by steam, electric or other motive power, street railways, 4 and incline railways, but not their construction when constructed by any person other than the company which owns or operates the railway, including work of express, sleeping, parlor and dining car employees on railway trains. Group 2. Construction and operation of railways not included in group one. Group 3. The operation, including construction and repair, of car shops, machine shops, steam and power plants, and other works for the purposes of any such railway, or used or to be used in connection with it when operated, constructed or repaired by the company which owns or operates the railway. Group 4. The operation, including construction and repair, of car shops, machine shops, steam and power plants, not included in group three. Group 5. The operation, including construction and repair, of tele- phone lines and wires for the purposes of the business of a telephone company, or used or to be used in connection with its business, when constructed or operated by the company. Group 6. The operation, including construction and repair, of tele- graph lines and wires for the purposes of the business of a telegraph company, or used or to be used in connection with its business, when constructed or operated by the company. Group 7. Construction of telegraph and telephone lines not included in groups five and six. Group 8. The operation, within or without the state, including repair, of vessels other than vessels of other states or countries used in interstate or foreign commerce, when operated or repaired by the company. Group 9. Shipbuilding, including construction and repair in a ship- yard or elsewhere, not included in group eight. Group 10. Longshore 5 work, including the loading or unloading of cargoes or parts of cargoes of grain, coal, ore, freight, general mer- 3 — References to N. C. C. A. Interstate commerce, employee en- gaged in, 3 N. C. C. A. 606n; 4 N. C. 0. A. 925; 6 N". C. C. A. 920, 933; 8 N. C. C. A. 662, 665. Effect of Federal Employers' Liabil- ity Act upon workmen's compensation act, 9 N. C. C. A. 286, 307. Federal Employers' Liability Act, who are within, 6 N. C. C. A. 183, 208. 4 — Motorman attempting to become passenger on road for which he worked, after working hours, 9 N. C. C. A. 1187- 1189, note 4. 5 — Longshoreman injured— Applica- tion of act to. — fThe claimant was em- ployed by the Lehigh Valley Eailrbad Company as a longshoreman and while engaged in unloading a barge for his employer at a pier in the North River, New York City, he was ordered by the captain to stand on some glycerine drums, and while doing so slipped and sustained a transverse fracture of the 1156 10 Negligence and Compensation Cases Annotated. ^ 2 chandise, lumber or other products or materials, or moving or handling upper third of his left femur, by rea- son of which he was disabled from working from May 8th to July 13, 1915, and on that date was still dis- abled. Compensation was awarded and the claim continued. McGuire v. Lehigh Valley R. E. Co., 5 N. T. St. Dep. Eep. 406 (1915). Ragpicker injured while searching for rags at dump at docks as engaged in longshore work. — While picking rags from the rubbish delivered by wagons at a city dump the claimant cut his thumb upon a piece of glass. Infection set in and compensation was awarded. The commission found, in substance, that the claimant was engaged in longshore work. The employer and the insurance carrier appealed. After quoting group 10, in section 2 of the compensation act, the court said: "The subdivision of the section quoted carries with the leg- islative understanding as to what 'long- shore work' means. Such employment not only refers to the loading and un- loading of cargoes, but to the moving or handling of any part of a cargo upon any dock, platform, or place, or in any warehouse or other place of stor- age. The word 'cargo' ordinarily means the lading or freight of a ship or other vessel; the goods, merchandise, or whatever is conveyed in a vessel or boat. The claim, therefore, is not within this group unless claimant was loading or unloading, moving or han- dling a part of a cargo. The fact that the city dump was at the foot of a street, and that the plaintiff was work- ing upon it, does not make his work longshore work any more than if the dump had been at a distance from the shore. The commission had a right to assume that scows would come along- side of the dump from time to time and remove the refuse, but the claimant had nothing to do with the removal. The refuse forming the dump was brought to the place by wagons, and from time to time the claimant and others would go over the dump in search of rags or any other things of value. This was not to prepare the refuse upon the dump for shipment, but was in the in- terest of the contractor, who had a right to go over the dump and take from it anything he wished. The refuse would be removed whether the con- tractor exercised his right or not; but to get the value of his contract, he would be interested in having his em- ployees take from it before removal whatever was of value. There is noth- ing to indicate that the plaintiff ever went upon the scows; but, if he searched for rags upon the scows, he was not there for the purpose of load- ing or unloading Or handling the cargo, but solely for the purpose of taking from the scows whatever he might find there of value, not in the interest of the shipping of the cargo, but in the in- terest of the contractor in obtaining what profit he could from the refuse. But there is nothing to indicate that the claimant worked upon the scows. The evidence shows that his work was upon the dump as wagons were throw- ing the refuse upon it. "The presumption raised by section 21 of the act that the case comes within the act does not permit the words of the statute to be warped from their usual and ordinary meaning. It relates more to the facts so far as it affects the construction of the statute itself, it can only be material as indicating that the statute is a remedial one, and should be given a liberal construction in order to carry out the beneficial pur- pose intended to be accomplished by the law. It is the duty of the legis- lature, and not of the commissioner of this court, to determine what employ- ments are hazardous. With reference to the act an employment is either haz- ardous are nonhazardous, and no em- ployment can be treated as hazardous 112 New York Appendix. 1157 the same on any dock, platform or place, or in any warehouse or other place of storage'. Group 11. Dredging, subaqueous or caisson construction, and pile driving. 6 Group 12. Construction, installation 7 or operation of electric light unless the act, fairly construed, declares it such. We cannot give to the lan- guage employed a strained or unusual meaning for the purpose of bringing within the act an employment not in- tended by the legislature to be em- braced within it. The handling and moving of cargoes is hazardous on ac- count of the conditions under which they are moved and handled in load- ing and unloading boats and the nature and quality of the merchandise usually worked. Picking rags from a dump at the foot of a street was not fairly within the legislative meaning when it declared longshore work to be a haz- ardous employment. The commission therefore made an error in law when it declared that the claimant was en- gaged in longshore work at the time of the accident, and for such error its award must be reversed within the Gardener case, 156 N. Y. Supp. 899, 10 N. C. O. A. 1152, ante, decided at this term of court." Tomassi v. Christen- sen, — App. Div. (N. Y.) — , 156 N. Y. Supp. 905 (1915). Longshoremen, application of compen- sation act to, where remedy exists under Federal Employers' Liability Act, 9 N. O. C. A. 1190-1191, note 5. Longshoremen employed by foreign company, whether compensation act ap- plicable to, 9 N. C. C. A. 1191, note 5. Construction of compensation act with reference to longshoremen, 9 N. 0. C. A. 1191-1192, note 5. 6 — Injured driving sheeting — Whether pile driving within meaning of act. — The deceased was working for his employer assisting in driving sheet- ing on the beach for the protection of the municipal baths at Coney Island. While so engaged he sustained injuries which resulted in his death. Compen- sation was awarded and the defendants appealed. The appellants contended that driving sheeting was not within group 11 of the enumerated employ- ments, to wit, " piledriving. " The court said: "This court is not war- ranted in disturbing the award made by the commission. This sheeting was to be used in a jetty to extend into the ocean for the protection of the munici- pal baths on the water front at Coney Island. In work of this character sheeting is a form of piling. Volpe v. Cederstrand, 126 Minn. 355, 148 N. W. 119. (Also see Century Dictionary.) The 'driving' of 'sheeting' was, in- dubitably, under the evidence and the authorities, the driving of 'sheet pil- ing,' and brought the decedent's em- ployment within group 11 of the enu- merated employments, to wit, ' pile driving.' The fact that the deceased may, at the moment he met with injury, have been engaged in performing a physical act more approximately inci- dent to the making of this sheeting than to the drivjng of it down into the sand, could not, had the same been found by the commission, or were the same required by the evidence, require reversal of the award. The award should be affirmed. ' ' Mazzarisi v. Ward & Tully, — App. Div. (N, Y.) — , 156 N. Y. Supp. 964 (1915). 7 — Reference to N. C. C. A. Installing motor, truck driver and storekeeper 's helper assisting in, whether extrahazardous business, 8 N. C. C. A. 440, 442. 1158 10 Negligence and Compensation Cases Annotated. ^ 2 and electric power lines, dynamos, or appliances, 8 and power transmis- sion lines. Group 13. Paving; sewer 9 and subway construction, work under compressed air, excavation, tunneling and shaft sinking, well digging, laying and repair of underground pipes, cables and wires, not included in other groups. Group 14. Lumbering; logging, river-driving, rafting, booming, saw mills, shingle mills, lath mills ; manufacturer of veneer and of excelsior ; manufacture of staves, spokes, or headings. Group 15. Pulp and paper mills. Group 16. Manufacture of furniture, interior woodwork, organs, pianos, piano actions, canoes, small boats, coffins, wicker and rattan ware ; upholstering ; manufacture of mattresses or bed springs. Group 17. Planing mills, sash and door factories, manufacture of wooden and corrugated paper boxes, cheese boxes, mouldings, window and door screens, window shades, carpet sweepers, wooden toys, articles and wares or baskets. Group 18. Mining; reduction of ores and smelting; preparation of metals or minerals. Group 19. Quarries ; sand, shale, clay or gravel pits, lime kilns ; manu- facture of brick, tile, terra-cotta, fire-proofing, or paving blocks, manufacture of calcium carbide, cement, asphalt or paving material. Group 20. Manufacture of glass, glass products, glassware, porcelain or pottery. Group 21. Iron, steel or metal foundries; rolling mills; manufacture of castings, forgings, heavy engines, locomotives, machinery, safes, anchors, cables, rails, shafting, wires, tubing, pipes, sheet metal, boilers, 10 furnaces, stoves, structural steel, iron or metal. Group 22. Operation and repair of stationary engines and boilers, not included in other groups. Group 23. Manufacture of small castings or forgings, metal wares, instruments, utensils and articles, hardware, nails, wire goods, screens, bolts, metal beds, sanitary, water, gas or electric fixtures, light machines, typewriters, cash registers, adding machines, carriage mountings, bi- cycles, metal toys, tools, cutlery, instruments, photographic cameras and supplies, sheet metal products, buttons. Group 24. Manufacture of agricultural implements, threshing ma- 8 — Reference to N. C. 0. A. Ordinance regulating electric eleva- tor as rendering business using eleva- tor hazardous, 5 N. C. C. A. 794. 9— Reference to N. C. C. A. Manhole In street, construction of as extrahazardous employment, 8 N. C. C. A. 442, 443. 10 — Reference to N. C. C. A. Repairing of boilers In department store as hazardous occupation, 5 N. 0. C. A. 790. 112 New Yokk Appendix. 1159 chines, traction engines, wagons, carriages, sleighs, vehicles, automobiles, motor trucks, toy wagons, sleighs or baby carriages. Group 25. Manufacture of explosives and dangerous chemicals, cor- rosive acids or salts, ammonia, gasoline, petroleum, petroleum products, celluloid, gas, charcoal, artificial ice, gun powder or ammunition. Group 26. Manufacture of paint, color, varnish, oil, japans, turpen- tine, printing ink, printers' rollers, tar, tarred, pitched or asphalted paper. Group 27. Distilleries, breweries; manufacture of spirituous or malt liquors, alcohol, wine, mineral water or soda waters. • Group 28. Manufacture of drugs 11 and chemicals, not specified in group twenty-five, medicines, dyes, extracts, pharmaceutical or toilet preparations, soaps, candles, perfumes, non-corrosive acids or chemical preparations, fertilizers, including garbage 12 disposal plants; shoe black- ing or polish. 11 — General utility man in wholesale drug house — Whether employment hazardous. — It appeared that defendant was a wholesale druggist. At the time of the accident, the deceased, who was employed by the defendant as a gen- eral utility man, was engaged in build- ing a shelf near an elevator well, and, while reaching into the elevator well to procure a board, lost his balance and fell down the shaft from the third floor, and was killed instantly. The court held that it might be inferred that the defendant was engaged in the "manu- facture of drugs and chemicals." The court said: "A general utility man, en- gaged in an establishment where drugs and chemicals are manufactured, must be presumed to participate more or less in the work of the establishment. The deceased was engaged at the instant of the accident in building a shelf, but in order to do this it may have been nec- essary to handle the drugs and chem- icals in the building; that is, move them so as to have room to build the shelf, and after it was built place them on the shelf. In fact, the evidence before the commission shows that the deceased was required to rearrange cases and do work of that character. * * * We think that it should be held that the ,10 N. C. C. A. N. Y. App.— 2 claimant's intestate came to his death while engaged in one of the hazardous employments enumerated in the act. ' ' Larsen v. Paine Drug Co., — App. Div. (N. Y.) — , 155 N. Y. Supp. 759 (1915), affi'g 9 N. C. C. A. 1204. 12 — Picking rags at city dump on dock — Nature of employment. — While picking rags from the rubbish delivered by wagons at a city dump the claim- ant cut his thumb upon a piece of glass. Compensation was awarded and the em- ployer and the insurance carrier ap- pealed. Upon the argument of tho case, before the court, the attorney- general suggested that the case might fall within group 28, providing that the following shall be deemed to be haz- ardous employment: "Manufacture of drugs, and chemicals, * * * medi- cines * * * fertilizers, including garbage disposal plants; shoe blacking or polish." In disposing of this sug- gestion the court said: "The commis- sion has found no facts tending to show that the claimant was employed in the manufacturing of fertilizers or upon a garbage disposal plant connected in any way with such manufacture. It would seem to be a straining of this sub- division of the -statute to bring the work of the claimant within its pro- 1160 10 Negligence and Compensation Cases Annotated. H 2 Group 29. Milling; manufacture of cereals or cattle foods, warehous- ing ; J 3 storage ; 14 operation of grain elevators. visions. Undoubtedly some of the gar- bage collected through the city and thrown upon a dump might be used for fertilizers; but the group contemplates the manufacture of fertilizers and a garbage disposal plant in some way con- nected with such manufacture. A mere dumping of refuse which may contain material valuable as a fertilizer does not make the dump a garbage disposal plant. In the absence of some evidence or some finding to indicate more partic- ularly the character of the dump, it can- not be assumed that the claimant was engaged in that employment. A new hearing may develop further facts; but, upon the theory upon which the case was heard ajid disposed of by the commission, we find that the award is not justified, and ' that the commission committed error of law in making it. ' ' Eeversed and remanded to the commis- sion. Tomassi v. Christensen, — App. Div. (N. Y.) — , 156 N. Y. Supp. 905 (1915). 13 — Whether person operating pri- vate warehouse engaged in hazardous business. — Claimant's employer was en- gaged in the wholesale produce busi- ness. In connection with said business and upon the said premises, he main- tained a warehouse or place of storage. Claimant was employed by defendant as shipper. While tiering barrels of vinegar, weighing about 500 pounds each, in the storehouse, his right hand was pressed against a brick wall, in- juring the second and third fingers. The commission found that the injuries were accidental, arose out of the course of the employment, and were without fault of the employee. The commission certified the question whether claimant was engaged at the time of his injury in a hazardous employment within the meaning of the compensation act. In answering the question in the negative the court said that claimant's em- ployer ' ' was not carrying on the busi- ness of warehouseman for pecuniary gain," and hence, claimant was not en- gaged in hazardous employment. Mihm v. Hussey, — App. Div. (N. Y.) — , 155 N. Y. Supp. 860 (1915). 14 — Purchasing and sales agent of storage business on road buying fruits — Injured while. — The employer was en- gaged in the business of handling and storing fruits and produce at Ballston, N. Y. The employer was also engaged in the business of buying and selling fruit. Some or all of the fruit pur- chased was subsequently stored in the storehouse at Ballston. The claimant was employed as purchasing and sales agent and assistant to the general man- ager. At the time the claimant was injured he was in West Virginia, going from place to place in an automobile buying fruit, when the automobile turned over and he was seriously in- jured. From an award of compensation made by the State Industrial Commis- sion, the defendants appealed. The court said: "I do not think the work in which the claimant was engaged when he received his injury has any logical or appropriate connection with the storage business. That business implies merely the housing and care of property within a storehouse or other appropriate place of deposit. There is no implication that the goods stored be- long to the person engaged in the stor- age business. In fact ownership of the goods is entirely irrelevant. And what- ever dangers and hazard may be inci- dent to the storage business certainly have no connection with traveling through the country as a purchasing or sales agent. The purchasing of goods and acquiring ownership thereto is not an incident to the business of conduct- ing a storage house. The statute should be given a liberal interpretation, but liberality should not be stretched into 112 New Yobk Appendix. 1161 Group 30. Packing houses, abattoirs, manufacture or preparation of meats 15 or meat products or glue. Group 31. Tanneries. Group 32. Manufacture of leather goods and products, belting, sad- dlery, harness, trunks, valises, boots, shoes, gloves, umbrellas, rubber goods, rubber shoes, tubing tires or hose. extravagance, and it seems to me that it would be highly unreasonable to hold that this claimant was injured in a hazardous employment as described and defined by the statute. It certainly was not the legislative intent, in using the word ' storage ' and making it a hazardous employment, to include there- in the duties of a purchasing agent, which differ in no respect merely be- cause the objects of his purchases may find their way into a storage house. "I assume that the claimant in the course of his employment had duties to perform in connection with the or- dinary storage business, and that he would be entitled to compensation for an injury received in the performance of such duties. But the difficulty is that the employer was engaged in two entirely distinct kinds of business, one of which was not within the protec- tion of the statute, and that the claim- ant was injured in the performance of his duties, which at the time of the in- jury solely had reference to that kind of business not thus protected. This is not a case where the duties of the em- ployee in connection with two differ- ent kinds of business are so blended and intermingled that it is impossible to say that the particular act which he was doing when injured related to one kind of employment rather than to the other. Here it appears beyond perad- venture that the employee was doing nothing at the time of his injury which had any pertinent or legitimate connec- tion with the storage business, and this is so notwithstanding the presumption which the statute establishes in favor of an award. The evidence here is con- clusive to the contrary." Award re- versed, and matter remanded to the commission for further action. In re Sickles, — App. Div. (N. T.) — , 156 N. Y. Supp. 864 (1915). 15 — Delivering aneat on foot — Death from fall over bucket of glass — • Whether hazardous employment. — De- ceased was employed by the defendant in the latter 's meat market. His prin- cipal duties were driving a meat deliv- ery wagon, acting both as driver and deliveryman. Occasionally he assisted in the abattoir, also in cutting and pre- paring meats. Sometimes he delivered meat on foot. The wagon and horse were not used for delivering after 7 p. m. On the evening of the accident, after 7 p. m., deceased worked in the market until about 10 p. m. While on his way on foot to arrange for the preparation and care of a dressed hog, and also to deliver a package of meat at a nearby flat, he fell on a pail of broken glass, severing a varicose vein, from which death resulted. The place where he was injured was on the way he would take to go from the market to the flat. In holding that the deceased was not engaged in a hazardous employment as contemplated by the compensation act, the court said: "We do not think the employment of deceased at the time he received the injury can be held to have been within group 30. The accident took place away from the market, and the transaction related to matters spec- ified in that group simply to the extent of arranging for the preparation and care of the dressed hog. Neither do we think the employment can be held to have been within group 41. Conced- edly, the principal duty of the de- ceased was to drive a meat delivery 1162 10 Negligence and Compensation Cases Annotated. ^2 Group 33. Canning or preparation of fruit, vegetables, fish or food stuffs; 10 pickle factories and sugar refineries. Group 34. Bakeries, including manufacture of crackers and biscuits, manufacture of confectionery, spices or condiments. Group 35. Manufacture of tobacco, cigars, cigarettes or tobacco products. Group 36. Manufacture of cordage, ropes, fibre, brooms or brushes; manilla or hemp products. Group 37. Flax mills; manufacture of textiles or fabrics, spinning, weaving and knitting manufactories; manufacture of yarn, thread, hosiery, cloth, blankets, carpets, canvas, bags, shoddy or felt. Group 38. Manufacture of men's or women's clothing, white wear, shirts, collars, corsets, hats, caps, furs or robes. wagon, acting both as driver and deliv- eryman. He had put his horse up sev- eral hours before, and was engaged in the occupation of a deliveryman on foot. This occupation was not included in any of the groups of hazardous employ- ments, nor was it on this occasion a part of, or in any way connected with, a delivery by horse and wagon, nor can it be said, under the circumstances, to have been a risk incidental to a haz- ardous employment. The accident did not arise out of a risk related or pecul- iar to his employment as such driver. It was a common risk, to which any person was equally exposed who chanced to travel that way on foot, without regard to the nature of his employ- ment. * * * We think it must be held that, under the conceded facts, the injuries sustained by the deceased did not arise out of his employment in a hazardous occupation or incidental to it. ' ' Newman v. Newman, — App. Div. (N. Y.) — , 155 N. Y. Supp. 665 (1915). References to N. C. C. A. Butchering in department store as hazardous occupation, 5 N. C. C. A. 791. Meat distributing as hazardous em- ployment, 5 N. C. C. A. 794. 16 — Fingers frozen harvesting ice for employer manufacturing cheese — Whether hazardous employment under group 33. — Defendant was engaged in manufacturing cheese. For the pur- poses of its business it was necessary to harvest ice and claimant was em- ployed solely for this purpose. While so engaged two of the fingers of his right hand were frozen. Claimant was awarded the sum of $159.50. It was contended defendant was engaged in a hazardous business within the meaning of group 33. In holding that the award could not be sustained, the court said: "What might be the law if claimant was regularly employed in making cheese [the business of the defendant], and had been sent out into a freezing cold to assist in gathering a crop of ice, is not now before us. The record shows that he was employed for this special purpose, and was engaged in his regu- lar occupation when the injury was sus- tained, and there is no suggestion in the statute that a common laborer en- gaged in harvesting ice is engaged in a hazardous employment. * * * He was at work at his regular employment of harvesting ice, and under the well- established rules of construction the language of the workmen's compensa- tion act found in group 33 of section 2 cannot be stretched to cover this case." Aylesworth v. Phoenix Cheese Co., — App. Div. (N. Y.) — , 155 N. Y. Supp. 916 (1915), rev'g 9 N. C. C. A. 1208. 112 New Yoek Appendix. 1163 Group 39. Power laundries ; dyeing, cleaning or bleaching. Group 40. Printing, photo-engraving, stereotyping, eleetrotyping, lithographing, embossing; manufacture of stationery, paper, cardboard boxes, bags, or wall-paper ; and book-binding. Group 41. The operation, otherwise than on tracks, on streets, high- ways, or elsewhere of cars, trucks, wagons or other vehicles, 17 and rollers and engines, propelled by steam, gas, gasoline, electric, mechanical or other power or drawn by horses or mules. 17 — Whether helper on automobile truck is engaged in hazardous employ- ment — "Operation of trucks" con- strued. — Deceased was a "helper" on an automobile truck used for the deliv- ery of goods by the defendant. While the truck was proceeding along the street, some boys climbed upon the truck or hung onto it. In driving them away, deceased fell to the pavement, fractured his skull, and death resulted. It was contended that the helper on such a truck was not one who operated a truck within the meaning of the compensation act. The court said: "If the word ' operation ' is to be restricted to the actual process of driving the truck — that is, steering it and manipu- lating the brakes and levers — then, of course, the deceased was not engaged in the operation of this truck. But no such narrow construction should be placed upon the expression 'operation of trucks.' In order to operate this truck, used in the wholesale grocery business, the proprietors of the concern found it necessary to employ two men. There were other duties required of these men beyond the mere matter of driving the truck. Presumably goods were to be loaded and unloaded and delivered; and in driving through the streets of the city it was thought neces- sary by the employers, very likely, to have one person guard and look after the load, to prevent articles being lost or stolen, while the other was driving the truck. All these various labors made up the duties of the men and con- stituted the operation of the truck. Therefore it must be held that deceased was engaged in the operation of the vehicle." Hendricks v. Seeman Bros., — App. Div. (N. Y.) — , 155 N. T. Supp. 638 (1915); aff'g 9 N. C. C. A. 1219. Teamster, whether engaged in hazard- ous employment, 9 N. C. C. A. 1194, note 11. Elevator as "vehicle." — Claimant's decedent was employed in defendant's shipping department as a porter or ship- ping clerk. He accidentally fell down an elevator shaft and was killed. The commission found that defendant was engaged in the business of selling glass- ware. In affirming the award, the court said: "There was no elevator man, but the elevator was used in the business by the different employees from time to time. The serious question is whether it was a 'vehicle' within the meaning of group 41. Clearly lit was a means of carrying persons and things, and falls fairly within the definition of a vehicle. There seems to be no good reason why cars, trucks, and wagons, propelled in the manner mentioned in that group, should be included, and an elevator excluded. They are all vehicles for the carrying of persons and things. It can- not be urged that an elevator is ex- cepted by the expression 'otherwise than on tracks.' There are guides upon each side of the elevator to keep it plumb and to facilitate its operation, but it cannot be said to be operated on tracks within the meaning of that sec- tion. If such a construction were to be given, the reasoning would force it into group 1, which includes the opera- tion of railways operated by steam, 1164 10 Negligence and Compensation Cases Annotated. U2 Group 42. Stone cutting or dressing; marble works; manufacture of artificial stone; steel building and bridge construction; installation of elevators, fire escapes, boilers, engines or heavy machinery ; brick-laying, tile-laying, mason work, stone-setting, concrete work, plastering; and manufacture of concrete blocks ; structural carpentry ; painting, decorat- ing or renovating; sheet metal work; roofing; construction, repair 18 and electric, or other motive power, street railways, and incline railways. The elevator is operated by the power men- tioned in group 41, and a liberal con- struction of the statute brings it within that group."< Wilson v. Dorflinger & Sons, — App. Div. (N. Y.) — , 155 N. Y. Supp. 857 (1915). Building superintendent killed operat- ing elevator. — The deceased was em- ployed by the Western Union Telegraph Company as superintendent of its build- ing. In caring for the building it was the duty of the deceased, among other things, occasionally to run the elevators, and during holidays and Sundays when the regular elevator men were not pres- ent, it was a part of deceased 's duties to take persons on the elevator from one floor to the other. On the day of the injury, which was Sunday, the de- ceased was at the building and had occasion to use the elevator. He un- locked the elevator door, reached for- ward to turn the lights on and fell to the bottom of the shaft. He expected to find the elevator at the main floor, but as a matter of fact one of the ele- vator men was present without the knowledge of the deceased and was using the elevator at one of the floors above. The deceased died a few days later and his widow made a claim for compensation. The decision of the commission was as follows: "The ap- pellate division of the supreme court in the case of Wilson v. Dorflinger & Sons, 155 N. Y. Supp. 957 [reported this note, ante] affirmed an award made by this commission, not only holding that the operation of an elevator falls within group 41 of section 2 of the workmen's compensation law, but has done so in a case remarkably like this one. The court there said, ' a freight elevator was used sometimes by the employees in going from floor to floor, especially when carrying merchandise or freight, and the deceased frequently used it. The commission has found that he acci- dentally fell down the shaft and was killed. He was found at the bottom of the shaft. It also finds that he was employed as a porter and shipping clerk and one of his incidental duties was to operate the elevator when he had occa- sion to use it. ' It seems to me quite clear that this case is governed by the decision of the appellate division in the Wilson case, already quoted, and that compensation must be allowed." An award of compensation was made. Sterling v. Western Union Tel. Co., 1 St. Ind. Comm. Bull. (No. 3, 1915) 10, 5 N. Y. St. Dep. Rep. 445 (1915). Elevator operator killed. — The de- ceased was employed as an elevator operator in an office building and was accidentally caught between the floor of the elevator and the top of the door at the ground floor, receiving injuries from which he died. The commission held that the injuries were accidental and arose out of and in the course of his employment. An award of compensa- tion was made for the benefit of his sister and brothers who according to stipulation of the attorneys were de- pendents. North v. McCreery Bealty Corporation, 6 N. Y. St. Dep. Rep. (No. 34, p. 46, 1915). 18 — Janitor of apartment building required to make repairs — Application of act to. — Claimant 's employer was in the real estate business and owned or operated various apartment buildings 112 New York Appendix. 1165 demolition of buildings and bridges; plumbing, sanitary or heating engineering ; installation and covering of pipes or boilers. in the City of New York. The claimant was employed as a janitor in one of these buildings. While he was going up on the roof of the building for the purpose of putting out a flag, he slipped and fell from a ladder and was injured. Compensation was awarded and the employer and insurer appealed. The commission found as matter of fact, that the claimant "was employed as a janitor and that while in the said em- ploy he had general charge of the repairs of the building* and was en- gaged to make such repairs so far as he could himself." The finding of fact as to the circumstances of the accident was as follows: "On said date Albert Gleisner was going up on the roof to perform some work on the flagpole on top of the building. He slipped and fell from the ladder a distance of seven or eight feet, and fractured his left femur, by reason of which injuries he was incapacitated from the date of the accident for a period of 29 weeks." The record of the case also indicated that the injured janitor at times did work of a kind enumerated in section 2 as constituting employments within the scope of the compensation plan. He made certain repairs to plumbing, and did painting and carpenter work of at least a minor kind. He covered pipes with asbestos, and during the winter months he operated the boiler of the steam-heating plant. This boiler and plant were not in operation during Sep- tember, when the claimant was injured. Most of the repair work seemed to have been done for the tenants rather than the employer. It was contended that claimant 's employment was included in group 42 of the act, which includes: "structural carpentry; painting; con- struction, repair and demolition of buildings; plumbing; heating engineer- ing; covering of pipes or boilers." It was admitted that the injuries were accidental and that they arose out of and in the course of the employment. The question at issue here was whether, at the time of the injury, the claimant was doing work or engaged in an em- ployment which was hazardous within the meaning of the workmen's compen- sation act. The court held that the findings of the commission did not sus- tain or warrant the conclusion that the claimant was engaged in one of the employments enumerated in section 20 of the statute; that the work of a jan- itor, as such, was not a hazardous em- ployment; and that on the face of the commission's findings, when read in connection with the statutory defini- tions, altogether overcome any statu- tory presumption of the applicability of the compensation plan to a claim made under it, and left the commis- sion's legal conclusion unsustained; that although the putting out of a flag on the roof of his employer's building was doubtless an incidental part of his duties as janitor, it could not' in law or common sense be deemed an actual or incidental part of any of the kinds of work enumerated in group 42 of the act. The court said: "If an em- ployee's duties are exclusively or pre- dominantly within an enumerated em- ployment or employments, and he is injured while doing work fairly within the scope of the ordinary and accus- tomed fulfillment of such duties, he has a rightful claim, even though the par- ticular act he was doing when mishap befell him would not, of and by itself, ordinarily be described by the use of the phraseology contained in the stat- ute or as the doing of work enumerated in the statute. * * * Where, how- ever, as apparently here, the employee 's ordinary duties and accustomed scope of activities do not come exclusively or predominantly within the category of enumerated employments, and only 1166 10 Negligence and Compensation Cases Annotated. H 3 113. Definitions. § 3. As used in this chapter, 1. "Hazardous employment" means a work or occupation described in section two of this chapter. 2. "Commission" means the state workmen's compensation commis- sion, as constituted by this chapter. casually and incidentally does he do work fairly falling within that cate- gory, his right to remuneration must hinge on a finding that he sustained injury while actually and momentarily doing work named in the statute. If the employer shows that the employee was not so engaged when he met with injury, he is not entitled to reimburse- ment under the statute, even though he at times did work embraced within the statute. ' ' The award was set aside. Gleisner v. Gross & Herbener, — App. Div. (N. Y.) — , 155 N. Y. Supp. 946 (1915). Whether person employing carpenter to repair building is engaged in hazard- ous employment. — Defendant was occu- pying a building formerly used as a hotel. It contemplated making part of the first floor into a saloon, and using the second and third floors for its gen- eral business. Plaintiff's intestate con- tracted to do the work and furnish the materials, for $500. A part of the time he had men working with him. From time to time, as the work progressed, the defendant had extra work done for which it paid intestate by the hour. Extra work was contemplated whereby a partition was to be run through the saloon part of the building, making the saloon smaller. The studding for the partition had been put up as extra work while the contract work was being per- formed. A delay occurred, and then deceased was requested to finish the partition. He was in the saloon part, nailing lath on the studding over the door, when the accident occurred. De- ceased was a general carpenter, doing such work as he found to do, usually working by the hour, but sometimes by the job. He was not in the general employ of the defendant, but was the man usually employed to do odd jobs about the building. He never did any work in the macaroni business, that of the defendant, his only work being upon and about its buildings. The court held that deceased was not an employee in a business declared to be hazardous by the compensation act. The court said: "Clearly he was not engaged in the macaroni business, but his sole business was as carpenter. The company was not carrying on the carpenter business, or doing any carpenter work for profit; it was making repairs and improve- ments upon its real estate and hired a general workman for that purpose. * * * If a man in a business not hazardous employs a carpenter to do some work upon property, like the fix- ing of a window or a door, I do not think the person performing the work is an employee engaged in the hazard- ■ ous business of structural carpentry. * * * If the employer in the haz- ardous employment uses his regular employees in doing something which may not be a hazardous employment in itself, but the work is part of his gen- eral employment and incident to it, we may well say that the employee re- ceived the injury while engaged in haz- ardous employment. But where a man engages a carpenter by the hour to do some work upon his premises in the way of improvements, I cannot feel that he is engaged in the hazardous employment of structural carpentry or repair of buildings as contemplated by group 42 of the law."' Bargey v. Massaro Macaroni Co., — ■ App. Div. (N. Y.) — , 155 N. Y. Supp. 1076 (1915), rev'g 9 N. C. C. A. 1216. H3 New York Appendix. 1167 3. [As amended. Laws 1914, c. 316.] "Employer," 19 except when otherwise expressly stated, means a person, partnership, association, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation, employing workmen in hazardous employments, including the state 20 and a municipal 21 corporation or other political subdivision 22 thereof. (Effective immediately.) 19 — References to N. C. 0. A. When employers not specifically men- tioned are within act, 8 N. C. C. A. 588. Compulsory state insurance, relation- ship created between employer and em- ployee by, 10 N. C. C. A. 34-36. 20 — Employee of state highways, commission injured. — The deceased was employed as a foreman of a concrete gang, by the Commission of Highways, Department of Maintenance and Re- pair, of the State of New York, which department has charge of the main- tenance and repair of the state and county highways. He received an in- jury arising out of and in the course of his employment, which resulted in his death. An award- of compensation was denied on the ground that the State of New York, through its Commis- sion of Highways, was not engaged in business for pecuniary gain, within the meaning of the workmen's compensa- tion law. Allen v. State of New York, 6 N. Y. St. Dep. Rep. (No. 33, p. 77, 1915). References to N. C. C. A. State as employer within compensa- tion act, 5 N. C. C. A. 897, 963. Election by state to accept act, neces- sity of, 5 N. C. C. A. 899. Departments of state as employers within compensation act, 5 N. C. C. A. 897, 903. Highway commission of state as em ployer within compensation act, 5 N. C C. A. 902. State hoard of agriculture as em ployer within compensation act, 5 N. C C. A. 897. Fire warden's department of state as employer within compensation act, 5 N. C. C. A. 903. Hospital of state as employer within compensation act, 5 N. C. C. A. 903. State University as engaged in haz- ardous business, 7 N. C. C. A. 1190, 1193. 21 — References to N. O. C. A. Cities as employers within compensa- tion acts, 5 N. C. C. A. 904, 913. Policeman as employee within com- pensation acts, 8 N. C. C. A. 793; 5 N. C. C. A. 910. Fire department members as employ- ees within compensation acts, 5 N. C. C. A. 909. Street sweeper as employee within compensation act, 5 N. C. C. A. 905. Park caretaker as municipal em- ployee, 8 N. C. C. A. 960. High-school pupil making furniture for 1 school as municipal employee, 8 N. C. C. A. 961n. Maintenance of police pension fund as affecting status of policeman, 8 N. C. C. A. 794, 797n. Casual employment, power of munici- pality to plead, 3 N. C. C. A. 693n. 22 — References to N. C. C. A. Counties as employers within com- pensation act, 5 N. C. C. A. 903, 904. School district as employer within compensation act, 5 N. C. C. A. 904. Town marshal as employee within compensation act, 5 N. C. C. A. 912. Town employee engaged in pile driv- ing, whether act applies to, 8 N. C. C. A. 961n. Employee working in gravel pit as employee of county, 8 N. C. C. A. 960n. ] 168 10 Negligence and Compensation Cases Annotated. 11 3 4. "Employee" 23 means a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the 23 — Whether owner of majority of stock of corporation is employee where also employed as engineer. — The claim- ant owned 185 out of 200 shares of the common stock, and 91 out of 96 shares of the preferred stock, of the Kennedy Manufacturing & Engineering Com- pany. He was the consulting engineer of the company at a salary of $1,000 per month. While engaged in the course of his duties as consulting engineer he sustained a serious injury to his arms. The insurance carrier contended that the claimant being so large a stock- holder in his employer's corporation, he was not an employee within the mean- ing of the statute. The commission held that this contention could not be sustained ' ' for although he was the majority owner of the capital stock of his employer and seemed to have been the controlling mind in the corporation it must be remembered that a corpora- tion is a separate entity, and inasmuch as all insurance carriers, including the state fund, placed the officers of the corporation who had any duties to per- form relative to the running of the plant in the category of employees, it would not seem that an officer of a corporation, even though he be the prin- cipal stockholder, is debarred from compensation for that reason alone." Compensation was, however, denied in this case because the claimant had con- tinued, since the accident, to draw the same salary as before, and the conten- tion of the company that the claimant was not entitled to compensation be- cause his salary or wages had not been reduced, was sustained. Kennedy v. Kennedy Manufacturing & Engineering Company, 1 St. Ind. Comm. Bull. (No. 5, 1916) 12. Whether owner of plant or independ- ent contractor was employer — Effect of agreement of owner to assume inde- pendent contractor's liability for acci- dent. — The Warren City Tank & Boiler Company entered into a contract with William T. Cochran, whereby the latter agreed to construct a plant for the boiler company in New York. Cochran was to furnish his own tools and imple- ments and furnish and pay his help, for which he was to receive a lump sum after the completion of the job. The claimant was employed by Cochran and while engaged in the erection of the plant was injured. He never had any relations whatsoever with the boiler company but it was shown that the boiler company had entered into an agreement with Cochran whereby the former, in consideration of a reduction in the cost of the work, agreed to assume all responsibility for accidents. It was contended that this agreement made the boiler company the employer, and if not, then they were both em- ployers. The question at issue was whether this agreement shifted the lia- bility for compensation from Cochran, the employer and independent con- tractor, to the boiler company. The commission held that section 10 of the compensation law puts the liability on the employer for providing compensa- tion for the injured employee; that the relation of employer and employee lies at the basis of the whole scheme of compensation, and that the above agree- ment in nowise put the boiler company in the position of an employer; that the commission had no jurisdiction to pass upon the validity of such a contract, as its jurisdiction was limited to compen- sation for an injury to an employee against an employer and, therefore, it had no right to pass upon other ques- tions or be influenced in its decision upon the law and the facts, by any f3 New York Appendix. * 1169 same upon the premises or at the plant, or in the course of his employ- such considerations as had been urged. The commission was of opinion the award should run against Cochran and against no one else. Landrigan v. Coehran, 6 N. Y. St. Dep. Eep. (No. 33, p. 70, 1915). President and stockholder of corpora- tion, whether employee thereof, 9 N. 0. C. A. 1195-1196, note 16. Whether captain of boat is employee of owner, 9 N. 0. C. A. 1196, note 16. Policeman acting as guard at mine, whether employee of mine, 9 N. C. C. A. 1196, note 16. Member of gang, whether employee, 9 N. C. C. A. 1196-1197, note 16. Person employed in dredging, whether employee or independent contractor^ 9 N. C. C. A. 1197-1198, note 16. Sign painter, whether independent contractor or employee, 9 N. C. C. A. 1198-1199, note 16. Teamster as independent contractor or employee, 9 N. C. C. A. 1199, note 16. Determination as to who is employer of injured person, 9 N. C. C. A. 1199- 1200, note 16. References to N. C. 0. A. Relationship created between em- ployer and employee by compulsory state insurance, 10 N. C. C. A. 34-36. Unauthorized employment of boy as affecting status as employee, 8 N. C. C. A. 96Sn. Contracts by minors, validity, 3 N. C. C. A. 653. Minor workmen, application of com- pensation acts to, 6 N. C. C. A. 763, 774. Independent contractor, existence of relation, 4 N. C. C. A. 852n. Independent contractor, when rela- tionship of created, 10 N. 0. 0. A. 845- 848. When relationship is that of employee instead of independent contractor, 10 N. C. C. A. 836-845. Employee or independent contractor, whether person injured is, 10 N. C. O. A. 835-852. Method of payment as determining status of person as independent con- tractor or employee, 10 If. 0. C. A. 849-852. Salary or profits, receipt of as deter- mining whether person independent contractor or employee, 10 N. C. 0. A. 848-849. Supervision by employer as affecting relation of independent contractor, 7 N. C. C. A. 1076. Piece basis, whether quarryman work- ing on, employee or contractor, 7 N. 0. C. A. 1077. Partnership, whether work done in, is done as employee or contractor, 7 N. C. C. A. 1076. Interest of employees in proceeds of work as determining character as inde- pendent contractor, 7 N. C. 0. A. 1076. Partial control by another as affect- ing relation of employer and employee, 4 N. 0. C. A. 51,6. Independent contractor or employee, presence or absence of control as deter- mining status, 10 N. C. 0. A. 836-848. Person assisting contractor, relation- ship of parties, 10 N. C. C. A. 852. Taxicab driver operating under agree- ment for part of practice, 1 N. C. 0. A. 576. Employee of independent contractor, remedy of, 5 N. C. C. A. 616. Occupancy of employer's premises by employee as tenant, whether relation of employer and employee applies, 4 N. C. C. A. 935. Owner of dredge, whether independ- ent contractor or employee, Powley v. Vivian & Co., Inc. (N. Y. App. Div.), 10 N. C. C. A. 835. 1170 10 Negligence and Compensation Cases Annotated. A 3 ment away from the plant of his employer; and shall not include farm laborers 24 or domestic 25 servants. 5. "Employment" 20 includes employment only in a trade, business or occupation carried on by the employer for pecuniary gain. 6. "Compensation" means the money, allowance payable to an em- ployee or to his dependents as provided for in this chapter, and includes funeral benefits provided therein. 24 — Handyman Injured. — The claim- ant was employed as a handyman by a manufacturer of automobile lamps. While engaged in sweeping up the floor in his employer's factory he stepped too near a polishing lathe and his right hand was accidentally caught in the lathe, resulting in the laceration of the middle and ring fingers and in the per- manent injury of one of his fingers and loss of its use. His average weekly wage was $5.77. An award of compen- sation was made at the rate of $5.62 for a period of twenty-five weeks for loss of the use of the third finger of the right hand. Feinstein v. B. & L. Auto Lamp Co., 6 N. Y. St. Dep. Eep. (No. 34, p. 51, 1915). The claimant was employed as a handyman by a pipe manufacturer and while using a rip saw for his employer, his right hand was caught in the feed wheel and his fingers pulled into the saw, necessitating the amputation of part of the thumb and of the index finger, and disabling him from work for a period of six weeks. His average weekly wage was $11.42. An award was made at the rate of $7.61 weekly for four weeks for disability occasioned by the injuries to the fingers other than the thumb, and a further award for thirty weeks for the loss of part of the thumb. Wanck v. Wyckoff & Son Co., 5 N. Y. St. Dep. Rep. 414 (1915). Porter injured cleaning elevator shaft. — The deceased was employed in an office building as a porter and cleaner. It was his duty to clean out the elevator shaft twice a month. While cleaning around the running gears at the top of the elevator shaft, the elevator was started upward and he was crushed, by reason of which in- juries he died. An award of 1 compen- sation was made for the -benefit of his mother who was found to be a depend- ent. Belisario v. Hyde Beal Estate Corporation, 6 N. Y. St. Dep. Eep. (No. 34, p. 50, 1915). References to N. C. C. A. Exception of specified classes as af- fecting constitutionality of act, 5 N. C. C. A. 871. Farm laborers, exclusion from opera- tion of act, 1 N. C. C. A. 558; 4 N. 0. C. A. 556. Handyman about farm as farmer, 4 N. C. 0. A. 566n. Workman in market garden as farm laborer, 4 N. C. C. A. 556. Farm laborers, etc., exclusion of from operation of act as class legislation, see Western Indemnity Co. v. Pillsbury (Cal. 1915), 10 N. C. C. A. 1. 25 — Reference to N. O. 0. A. Domestic servants, exclusion from operation of act, 1 N. C. 0. A. 558. 26 — Working in woods, whether em- ployment seasonal or casual, 9 N. C. C. A. 1200-1201, note 19. References to N. C. C. A. Casual employment, what is, 4 N. C. C. A. 502, 507; 6 N. C. C. A. 958, 963. Hiring by day, when not casual em- ployment, 4 N. C. C. A. 682. Regular piecework not casual em- ployment, 4 N. C. C. A. 582. Tree trimmer, trimming trees across street from company's wires under or- ders of foreman is not a casual em- ployee, 5 N. C. C. A. 449. 114 New York Appendix. 1171 7. "Injury" and "personal injury" mean only accidental injuries arising out of and in the course of employment and such disease 27 or infection as may naturally and unavoidably result therefrom. 8. "Death" when mentioned as a basis for the right to compensation means only death resulting from such injury. 9. "Wages" means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging or similar advantage received from the employer. 10. "State fund" means the state insurance fund provided for in article five of this chapter. 11. "Child" shall include a posthumous 28 child and a child legally adopted 29 prior to the injury of the employee. 12. "Insurance carrier" shall include the state fund, stock corpora- tions or mutual associations with which employers have insured, and employers permitted to pay compensation directly under the provisions of subdivision three of seetion fifty. Article 2. compensation. IT 4. Liability for compensation. § 10. Every employer subject to the provisions of this chapter shall pay or provide as required by this chapter compensation according to the schedules of this article for the disability or death of his employee 27 — Tubercular peritonitis — Whether death was result of "such disease or infection as might -have naturally and unavoidably resulted" from accidents On August 31, 1914, the deceased re- ceived an injury while in the course of his employment which resulted in the fracture of his leg. He was properly treated and a union of the fracture secured. Compensation was awarded in his lifetime for his injury and some weeks after the aecident he developed tubercular peritonitis, from which he died on December 5, 1914. The widow made claim for compensation upon the proposition that his death was the result of "such disease or infection as may have naturally and unavoidably resulted" from the aecident. The weight of the medical evidence tended to show that the disease had no bear- ing on the accident. The commission held that death was not the result of an injury arising out of and in the course of his employment and was not such disease or infection as might have naturally and unavoidably resulted therefrom. Cappelli v. Cranford, 1 St. Ind. Comm. Bull. (No. 3, 1915) 11, 6 N. Y. St. Dep. Eep. (No. 31, p. 65, 1915). 28 — Reference to N. C. C. A. Posthumous child as dependent, 6 N. C. C. A. 260, 261. 29 — References to N. C. C. A. Adopted child as dependent, 6 N. C. C. A. 265. Child not legally adopted as depend- ent, 9 N. C. C. A. 590. 1172 10 Negligence and Compensation Cases Annotated. If 4 resulting from an accidental personal injury 30 sustained by the employee 30 — Anthrax injected through abra- sion of skin as accident The claimant was employed to trim skins in his em- ployer's tanning plant. While he was thus engaged he stooped down to pick up a skin from the floor and struck his left eheek against a beam, causing an abrasion of the skin. A beam is the implement on which the skins are placed for the purpose of cutting off the head, tail, and legs. He was work- ing on sheep skins, and such skins fre- quently carry germs of the disease known as anthrax. The blow to the cheek was sufficient to cause him pain and smarting at the site of the bruise, and during the afternoon he rubbed the sore place with his hand. The anthrax germ was injected into his cheek through this abrasion, either from the beam at the time he struck it, or through coming in contact with the hides. A doctor was called in the next morning and found a pustule at the seat of injury and diagnosed the case as anthrax. By reason of the injury the claimant was disabled for a period of nine and five-sixths weeks. Com- pensation was awarded for a period of seven and five-sixths weeks- Henry v. Levar & Co., Inc., 6 N. Y. St. Dep. Eep. (No. 35, p. 61, 1915). Death from lung congestion following blood poison resulting from contact with poison ivy. — Claimant's intestate was a section laborer. In the course of his employment, he mowed defendant's right of way. This was done every year, the men being engaged in this occupation several days at a time. The purpose of mowing down grass and weeds was to prevent the spread of fire and to prevent the grass from com- ing on the tracks, thereby causing the engines to slip. In the grass was grow- ing poison ivy. While mowing, the intestate came in contact with the ivy and was poisoned, and became sick and confined to his bed. Blood poison re- sulted, followed by congestion of the lungs and resulting in death. The re- mote cause of his death was ivy and septic poisoning. The immediate cause of death was acute congestion of the lungs to which his poisoned condition predisposed him. The court held that the injury could not be called an occu- pational disease, that it was accidental, and that the award in claimant's favor should be affirmed. Plass v. Central New England Ry. Co., — App. Div. (N. Y.) — , 155 N. Y. Supp. 854 (1915), aff'g 9 N. C. C. A. 1209. Lobar pneumonia following minor operation. — The deceased was an engi- neer, and on October 8, 1914, while fix- ing a pump on his engine, one of his fingers was crushed in the gears and had to be amputated. He returned to work the following day and continued to work and was treated for the injury until October 27th, when he was ap- parently cured. Compensation was awarded for the loss of his finger. On or about November 8, 1914, he con- tracted lobar pneumonia from which he died November 19, 1914, and it was contended that his system was so debil- itated by the effects of the injury that it reduced his power of resistance to the germs. The weight of the export medical testimony tended to show that lobar pneumonia never follows a minor operation. The commission was of opinion in this case that the injury had nothing to do with bringing on the pneumonia and denied the claim for compensation. Stanley v. Wood, 6 N. Y. St. Dep. Rep. (No. 33, p. 81, 1915), 1 St. Ind. Comm. Bull. (No. 4, 1915) 10. Death from pneumonia as result of accident. — The deceased was employed by McBoberts & Company, which was engaged in the business of furnishing watchmen to watch cargoes on piers in and around New York Harbor. Tho employer had entered into a contract n4 New York Appendix. 1173 [Notes on what constitutes an accidental personal injury.] with the United Port Service Company to furnish watchmen for goods on Bush Pier No. 1, and in pursuance of that contract the deceased was assigned as night watchman. The contract of em- ployment was made between the de- ceased and McRoberts & Company which paid the deceased and retained control over him. If the United Port Service Company had become dissatis- fied with him, it could not have dis- charged him but would have had to notify McRoberts & Company, and if any of the goods had been stolen during the period embraced in the contract, McRoberts & Company would have been liable to the owners. While performing his duties as watchman he fell over a box on the dock and sustained a frac- ture of the neck of the right femur, Static pneumonia and pleurisy devel- oped and resulted in his death. The commission held that the injuries were accidental and arose out of and in, the course -of his employment. An award of compensation was made for the ben- efit of his widow. Oberg v. McRoberts & Co., 6 N. Y. St. Dep. Rep. (No. 34, p. 61, 1915). Carcinoma aggravated by injury — Death resulting. — Decedent was the driver of a wagon. As he was driving across a, bridge, he was thrown from the 1 wagon to the floor of the bridge. While the truck or .wagon which he was driving did not run over him, it ran against him in such a way as to bruise him badly. The ninth and tenth ribs were broken. The accident hap- pened on July 10th. Shortly after the accident, hemorrhages from the intes- tines began. The proof of , death stated the remote cause of death as the injury, and the immediate cause of death as "hemorrhage from the bowels." It appeared that the decedent had a car- cinoma of the intestines and that this carcinoma was at the foundation of the case as the cause of death. The autopsy revealed a carcinoma about the size of an orange, which was consider- ably diffused over the intestines and other organs of the abdominal cavity. It was ^claimed that the injury so in- creased the virulence of the cancer that decedent died much earlier from it than he otherwise would. It appeared that he had never been ill and that he had been examined for life insurance and accepted as a good risk only a few months before the accident. It was held that death was traceable with rea- sonable certainty to the accident, and an award of compensation was made. Blatt v. Schoneberger & Noble, 1 St. Ind. Comm. Bull. (No. 6, 1916) 10. Disease aggravated by injury causing premature death, — The deceased re- sided in Jersey City, N. J., and was employed as a freight checker by the New York Cent. & H. R. R. Co., at the company 's station at St. John 's Park, N. Y. While unloading a car contain- ing merchandise consigned from a point in Massachusetts to St. John's Park, N. Y., he slipped and fell between the car and the platform and an iron plank, weighing about three hundred pounds, fell upon him and struck him in the chest, severely bruising his right side and chest and causing a fracture of the ribs. In spite of the accident he con- tinued to work, with the exception of November 6th, November 24th and 25th, until January 25, 1915, the acci- dent having Securred, October 31, 1914. On January 26, 1915, he was taken to the hospital and died February 26, 1915, from chronic heart lesions, from which he had suffered previous to the acci- dent. The injury of October 31, 1914, was found to have aggravated his con- dition and to have caused his prema- ture death. The commission held that the injuries were accidental and arose out of and in the course of his employ- ment. An award of compensation was made for the benefit of his dependents. 1174 10 Negligence and Compensation Cases Annotated. H 4 [Notes on what constitutes an accidental personal injury.] Brandt v. New York Central & H. R. E. Co., 6 N. T. St. Dep. Eep. (No. 32, p. 59, 1915). Blood poison from rupture of mucous membrane of nose. — The deceased had been employed by a pharmacal company for several years and it was his duty to handle a great many poisons used by the company and kept in cans or retainers. Many of these poisons were in the shape of powders. Some time between November 10th and December 1st, in attempting to handle a con- tainer of quinceseed, which was a little higher than his head, he let it slip and it hit him on the left side of the bridge of his nose. The can fell not more than 10 or 15 inches and weighed 10 or 12 pounds. There was no abrasion of the skin and no bleeding. He went to the sink and bathed his nose in cold water from three to five minutes and then re- turned to work. He continued to work until December 24th, but was taken ill immediately after Christmas with what eventually proved to be blood poison- ing, from which he died on January 2, 1915. A claim for compensation was made by the widow, based on the theory that while the accident did not cause any abrasion of the skin on the outside of the nose, it might have caused a rupture of the mucous membrane on the inside of the nose through which the germs subsequently entered, caus- ing the blood poisoning. One witness testified that on December 21st the de- ceased had a boil on his nose and that he opened it with his jack knife. The medical evidence was to the effect that blood poisoning could not have taken place except through a rupture of the mucous membrane or skin. The com- mission held that the blood poisoning from which the deceased died did not have its origin in the accident but that it was rather the result of an infection caused from the opening of the boil on his nose with the jack knife. The claim for compensation was denied. Partridge v. Norwich Pharmacal Co., 1 St. Ind. Comm. Bull. (No. 3, 1915) 10, 6 N. Y. St. Dep. Eep. (No. 31, p. 52, 1915). Whether septicaemia naturally and unavoidably resulted from injury. — While the decedent was working for his employer he sustained a personal in- jury which arose out of and in the course of his employment. Septicaemia developed and resulted in his death. Compensation was awarded and the de- fendants appealed. The decision of the court was as follows: "The immediate cause of death was septicaemia, which actually, naturally, and apparently un- avoidably, ensued from the injuries to the abdomen and bladder occasioned by ' the decedent 's fall. Workmen 's com- pensation law, § 3, subd. 7. The com- mission 's inquiry on this point was thorough and skillful; this court has no reason' to challenge its conclusion. Doubtless there was a diseased condi- tion before the injury; it may be that the injury would not have caused his death but for these antecedent condi- tions; the injury may have been but one of the concurring causes, set in motion by the injury. None of these facts, if found or clear from the evi- dence, would warrant vacating of the present award. The award should be affirmed." Mazzaris v. Ward & Tully, — App. Div. (N. Y.) — , 156 N. Y. Supp. 964 (1915). Toe stepped on by third person caus- ing bruise resulting in gangrene. — Claimants' decedent was employed by the defendant in "Its claim department. While on the way to perform some service for the defendant, as a process server, adjuster, or investigator, and while on one of the cars of his em- ployer, someone stepped on his toe so crushing it that gangrene set in, from which he died. It was held that claim- ants were entitled to compensation as the decedent was covered by the act. ^4 New Yoek Appendix. 1175 [Notes on what constitutes an accidental personal injury.] Brown v. Bichmond Light & B. Co., 1 St. Ind. Comm. Bull. (No. 6, 1915) 12. Slight burn and shock from collision resulting in insanity. — While the claim- ant was operating an elevated train, his train collided with another train as a result of which several passengers lost their lives and the claimant re- ceived a slight burn upon the face which was not sufficient to disable him from work. The commission found that the shock which he received as a result of the accident resulted in insanity and that the injuries were accidental inju- ries and arose out of and in the course of his employment. An award of com- pensation was made. Two of the com- missioners dissented from the decision and award because, in their opinion, the insanity was due to the fact that he was arrested and locked up on a charge of homicide, and lost his posi- tion. They thought the mental condi- tion was too remotely connected with the accident to justify an award of compensation. McMahon v. Interbor- ough Eapid Transit Co., 5 N. Y. St. Dep. Bep. 374 (1915). Delirium tremens and pneumonia a result of accident. — While the deceased was working for his employer as a laborer on some construction work which his employer was doing, a beam, 3x8 inches, which he was loosening, fell on his left shoulder. He finished work that day, and returned to work the next morning, which was Saturday. He quit at noon and did not return to work. His injury kept him confined to his home for four days, at the end of which period he was taken to the hos- pital, in a weak and irrational condi- tion. His left arm was paralyzed and he was also suffering from delirium tremens. The deceased was in the habit of drinking moderately, but just prior to the accident had not been indulging in liquor to any appreciable extent. In addition to delirium tremens, he 10 N. C. C. A. N. Y. App.— 3 developed lobar pneumonia. He died 11 days after the accident. The injury to his left shoulder was found to be the cause of the delirium tremens and development of lobar pneumonia and the cause of his death. Compensation was awarded for the benefit of his widow and children. Sullivan v. In- dustrial Engineering Co., 6 N. Y. St. Dep. Bep. (No. 35, p. 1915) 70. Prick of needle causing cellulitis. — While the claimant was taking down a rack on which rugs had been previously hanging, his finger was accidentally pricked by a rack needle, which later resulted in cellulitis of the right hand and left forearm. It was held that the claim came within the workmen's com- pensation laws and that he was entitled to compensation. Burton v. Whelen & Sons, 5 N. Y. St. Dep. Bep. 395 (1915). Car inspector injured stepping down from car causing strain of muscles of left inguinal region. — The claimant was employed by a railroad company as a car repairer and inspector, and while engaged in inspecting and repairing a car for his employer, to be used be- tween New York and Chicago, he mis- judged his step in getting off from the car and received a severe strain of the muscles and ligaments of the left in- guinal region, which incapacitated him from work for some time. The com- mission held that the injuries were accidental and arose out of and in the course of his employment. An award of compensation was made. Schreiber v. New York Central B. Co., 6 N. Y. St. Dep. Bep. (No. 32, p. 58, 1915). Inguinal hernia from strain in trip- ping. — While the claimant was wheel- ing a wheelbarrow containing ashes at his employer's plant, he tripped and fell, and received a severe strain in his right groin which resulted in a right inguinal hernia. The commission held that the injuries were accidental in- juries and arose out of and in the 1176 10 Negligence and Compensation Cases Annotated. U 4 [Notes on what constitutes an accidental personal injury.] course of his employment and an award of compensation was made for the dis- ability which followed. Caruso v. Dunwoodie Ice Company, Inc., 5 N. Y. St. Dep. Rep. 422 (1915). Mistake in taking poison for salts resulting in death as accident. — While the claimant was working for his em- ployer, he complained to his foreman of being sick and was told to take some Epsom salts of which there was a large quantity at the place of employment. The place where it was stored was indi- cated to him and he went to get the salts but by mistake took some chloride of barium which is a deadly poison, and in one hour he was dead therefrom. An award for compensation was granted to his widow on the ground that the injury which resulted in his death was an accidental injury, and arose out of and in the course of his employment. O'Neil v. Carby Heater Co., 6 N. Y. St. Dep. Rep. (No. 32, p. 50, 1915). Meat lugger and cutter slipping while unloading meat — Fracture of skull re- sulting in death. — The deceased was employed by Morris & Co. of Chicago, 111., as a cutter and meat lugger at their distributing station in Brooklyn, New York. While assisting in unload- ing meat from a car which had come in from the west, and which was on a float adjoining the station, his foot slipped and he fell over backward, striking his head on the edge of the float, and fell into the water. He re- ceived a fracture of the skull which resulted in his death a few days later. The commission held that his injuries were accidental and arose out of and in the course of his employment and that his dependents were entitled to com- pensation. Meyer v. Morris & Co., 6 N. Y. St. Dep. Rep. (No. 32, p. 61, 1915). Vibration of drill operated by com- pressed air — Whether paralytic stroke caused by. — The deceased employee, while engaged in subway construction, suffered a paralytic stroke or perhaps a collapse from an embolism. He was at the time operating a compressed air drill. He was assisted home and sub- sequently made claim for compensation, on the theory that his collapse was due to some defect in the working of the drill. The drill when in operation vibrated considerably and at times be- came clogged with mud and dirt. When in this condition, it appeared that de- ceased held the drill in his hands while the air was on in order to let it work the filling out. A small award was made, although the employer objected. Subsequently, at his house, the deceased suffered another shock from which he died. It appeared that no amount of vibration would produce an embolism, but it was the medical theory that if an embolism existed in the veins, a severe shaking might loosen it and cause it to travel to such a position of the body as to cause apoplexy. It was held that there was no sufficient proof of an accident, and the claim for com- pensation for deceased's death was dis- allowed. Mohr v. Frederick L. Craw- ford, Inc., 1 St. Ind. Comm. Bull. (No. 6, 1916) 10. Necessity for proof of suicide to overcome presumption that death re- sulted from accident. — The deceased was employed as a general helper in a livery and boarding stable. The place contained a large elevator, for the lift- ing of carriages, trucks and vehicles from one story to the other, which was operated by electricity. It was one of the deceased's duties from time to time to use this elevator and on the morning of his death he had entered from the lower story and gone to the upper for some purpose, not very clearly dis- closed. Not returning, some of the other employees called to him to bring the elevator down and, when it did not come down, opened the elevator door, fl4 New York Appendix. 1177 [Notes on what constitutes an accidental personal injury.] threw on the electric switch, and caused the elevator to come to the lower floor when the deceased's body was disclosed lying with his feet toward the interior of the elevator and his head over near the edge with the skull crushed, he being dead. Some of the witnesses stated that his head projected out over the edge of the elevator. It was shown that the deceased had, for some time, been afflicted with a loathsome disease which prevented him from being mar- ried and that he was in a very melan- choly state of mind, and on the morning of the accident paid a small sum which he owed one of his fellow-employees and gave his keys to another employee and told him to give them to the boss. The insurance carrier contended that these things pointed clearly to suicide. The commission was of opinion that these facts in nowise indicated that the deceased had committed suicide, but rather tended to show that his state of mind rendered him unusually careless about his safety and that it was more probable that he met death by accidentally going too near the pro- jecting edges of the floor through which the elevator passed, and that in any event the carrier had failed to present that substantial evidence to overcome the presumption of section 21 of the compensation law, which was necessary. The claim for compensation waB granted. Ignatowsky v. Berman, 1 St. Ind. Comm. Bull. (No. 3, 1915) 9, 6 N. Y. St. Dep. Rep. (No. 32, p. 55, 1915). Claimant must adduce evidence to show injury arose out of and in course of employment before presumption in section 21 applies. — The deceased was an assistant foreman in the employ of the defendant. While he was sweeping dirt and pebbles off the pavement in the vicinity of the work being done by a gang of men over whom he had charge, he suddenly fell to the street. Seventeen days later he died. An autopsy revealed that in his fall he had evidently received a fracture of the skull. The same autopsy disclosed that the fall had in all probability been due to an attack of cardiac syncope, to which the previous condition of the heart predisposed it. The deceased told a fellow-workman that "a weak spell must have come over him," and on the following day he told an examining physician that "he had a dizzy spell." The claimant's original theory had been that this cardiac syncope and fainting was due to the presence of an excessive quantity of gas emanating from a trench near which the deceased was when he fell. The proof wholly failed to give any support to that theory. The commission based its award upon a finding that the deceased stumbled over some obstruction in the Street and fell to the ground. There was no evidence adduced to indicate that the deceased stumbled, or that he fell as a consequence of doing, or while doing, any particular act or while put- ting forth any particular exertion. At the close of the fearing the deputy who sat in behalf of the commission said: "I am going to deny your re- quest and allow the claim on the basis that the accident arose out of and in the course of the employment, in the absence of proof to the contrary, and on the further ground that the testi- mony of the witnesses would indicate that there was an accident. In revers- ing the award the court said: "This, and the commission's subsequent find- ing of fact as to an 'accident' through ' stumbling over some obstruction, ' were, of course, as we have already pointed out, lacking in evidence tend- ing to support the same, and hence fully reviewable here. It should, more- over, be said that the deputy commis- sioner incorrectly stated and applied the presumptions arising under section 1178 10 Negligence and Compensation Cases Annotated. 11 4 [Notes on what constitutes an accidental personal injury.] 21 of the act. There is nothing in sec- tion 21, or any other part of the act, which relieves a claimant from pro- ducing evidence that the injuries 'arose out of and in the course of an employ- ment of the injured person by the employer against whom the claim is directed. Once that evidence of the employment, the injury in the course of it, the injury as result of something arising from the employment, is sub- mitted the first presumption enumerated in section 21 carries presumption of the commission's jurisdiction, applicability of the statute, the 'hazardous' charac- ter of the employment proved, and the inclusion of the work being done by the injured person at the time of the injury within the scope of an 'employ- ment' enumerated and defined as 'haz- ardous.' McQueeney v. Stuphen & Myer, 167 App. Div. (N. Y.) 528, 153 N. Y. Supp. 554, 9 N. C. C. A. 713; Koh- ler v. Frohmann, 167 App. Div. (N. Y.) 534, 153 N. Y. Supp. 559, and the sec- ond, third, and fourth items of section 21 carry presumptions covering, in the absence of substantial evidence to the contrary, the other conditions prece- dent specified in section 10. The com- mission is not authorized, however, to make an award under the act in the absence of at least some evidence that the employee met with an injury while he was at work for the specified employer and as a consequence of some- thing that had a relation to the work of the employer, something done by him or by others while he was so employed." Award reversed and re- manded. Collins v. Brooklyn Union Gas Co., — App. Div. (N. Y.) — , 156 N. Y. Supp. 957 (1915). Claimant alleged that on November 4, 1914, while the deceased was handling beef for his employer, one of the hind quarters struck against him, crushing him against the side of a truck. Some time afterwards the deceased suffered from intestinal ulcers, and it was claimed they were produced by the accident. The attending physician was unable to say what caused the intes- tinal ulcers. Deceased's wife claimed that deceased came home spitting blood and stated that he became sick while at work, but that he did not say he had been injured. All of his fellow- employees, with the exception of one, signed a statement that they knew nothing of an injury to the deceased and that they had not heard him make any complaints. The one not signing testified that he and two other men,- whom he named, were present at the time of the accident and assisted the deceased at that time. These two men were called and denied having any knowledge of the accident. The com- mission held that the evidence failed satisfactorily to establish the fact that an accident happened to the claimant, which resulted in his death; that it was true that under section 21, of the com- pensation law, there was a presumption, "In the absence of substantial evidence to the contrary, the claim comes within the provision of the chapter," but that this did not mean that the commission might indulge in the presumption that the accident happened; that what the section undoubtedly meant was that when an accident has been established, the presumption, in the absence of sub- stantial evidence to the contrary, arises that a claim growing out of the acci- dent falls within the statute. The commission must be satisfied by evi- dence, either direct or circumstantial, that the accident happened, before the presumption established by the statute arises. Hyland v. Winant, Inc., 6 N. Y. St. Dep. Hep. (No. 33, p. 64, 1915), 1 St. Ind. Comm. Bull. (No. 2, 1915) 8. Hearsay evidence in proof of acci- dent. — The deceased was employed in delivering beer for a brewer and on the afternoon of September 2, 1914, 1T4 New York Appendix. 1179 [Notes on what constitutes an accidental personal injury.] while in the performance of his duty and in the act of delivering beer, he was taken violently ill and died almost immediately. There was no direct proof from any witness that he suffered an injury. A number of witnesses to whom he had talked during the day testified that the deceased had told r them that while taking a keg of beer into th« cellar, during the early pari of the day, he lost control of it and it struck him in the chest. A number of other witnesses were called who testified that they had talked to the deceased during the day and that he had told them that he was sick, but did not men- tion the fact that he was injured. No one was found at the time of. his death who saw any evidence of an accident upon his body. The coroner 's physician at first testified that he made a personal examination of the deceased 's body and found no evidence of an accident, but this evidence was contradicted by the widow and other witnesses, and he later gave evidence which indicated that he did not make a very close ex- amination but rather relied upon the statement of the widow that the death was not brought about by the criminal- ity of any person and issued a death • certificate without making a very care- ful examination. The body was later disinterred under order of the supreme court and an autopsy made which tended to show that the deceased had suffered an injury in that part of his body where the keg would have been likely to have struck him if it slipped, resulting in a fracture of a rib or a tearing of it from the sternum or breast bone, and there was also evidence of bruises in that region. The commission held that the claimant was entitled to an award of compensation. In explain- ing the apparent discrepancy the wit- nesses' statements as to what the de- ceased had told them, Commissioner Lyon said: "I do not consider the wit- nesses are at all at variance on this point. A man who had received an injury and felt ill in consequence there- of, might very well say to some people that he was sick and to others that he had been hurt. Under the ruling of the appellate division, in the case of Carroll v. Knickerbocker Ice Co., .155 N. Y. Supp. 1, 9 N. C. C. A. 1212, it would be perfectly proper for the com- mission, if it thought the weight of the hearsay evidence sufficient, to grant compensation on this evidence alone, but if it were the only evidence in the ,case I should personally hesitate very seriously before doing so. I do not understand that the opinion of the appellate division goes any farther than to make it possible for this commission in carefully weighing evidence to make , a finding on hearsay evidence alone. I do not understand that the Appellate Division has in any way intimated that this commission should make such a finding on such evidence, unless it is convinced by the weight of the evi- denceof its truth. ' ' In referring to the evidence disclosed by the autopsy, Com- missioner Lyon further said: "It seems to me that this evidence is sufficient corroboration of the hearsay evidence of the accident to warrant a finding that the accident occurred, and if the accident occurred the medical testi- mony is sufficient to warrant a further finding that the accident was the cause of the decedent's sudden death. This, in conjunction with the presumption raised by section 21 of the compensation law, in^ny opinion makes it proper that an award should be made in this case and I so recommend." An award was accordingly made. Stadtmuller v. Ehret, 1 St. Ind. Comm. Bull. (No. 4, 1915) 9, 6 N. Y. St. Dep. Eep. (No. 31, p. 58, 1915). • Hernia caused by strain as accident, 9 N. C. 0. A. 1202, note 22. Hernia caused by slipping from foot- 1180 10 Negligence and Compensation Cases Annotated. H 4 [Notes on what constitutes an accidental personal injury.] piece of wagon, 9 N. C. C. A. 1202, note 22. Appendicitis, death from peritonitis following blow in stomach, 9 N. C. C. A. 1202, note 22. Foreman assaulted by employee rep- rimanded by him, 9 N. C. C. A. 1203, note 22. Stranger assaulting laborer, fall be- tween boxes of molten metal caused by, 9 N. C. C. A. 1203-1204, note 22. Discharged employee, workman as- saulted by, 9 N. C. C. A. 1204, note 22. Lacerated wound becoming infected, death caused by as accident, 9 N. C. C. A. 1204, note 22. Injury causing blood poison, death resulting from, 9 N. C. C. A. 1204, note 22. Driver struck by keg, alcoholic men- ingitis and delirium tremens developing, 9 N. O. C. A. 1205, note 22. Insanity superinduced by shock caused by collision, whether accident, 9 N. C. C. A. 1205, note 22. Suicide following injury to eye, 9 N. O. O. A. 1205-1206, note 22, Fall into water and mud in icehouse, employee suffocated by, 9 N. C. C. A. 1206, note 22. Pneumonia following operation as ac- cident, 9 N. C. C. A. 1206-1207, note 22. Tetanus following injury to toe, death caused by, 9 N. O. C. A. 1207, note 22. Fall, bladder rupture caused by, 9 N. C. O. A. 1209,, note 22. Fall, structural iron worker killed by, 9 N. C. C. A. 1207, note 22, and 1210, note 22. Fall from ladder, salesman and stock- keeper injured, 9 N. C. C. A. 1209, note 22. Frostbite and freezing, fingers injured by, 9 N. C. C. A. 1207-1208, note 22. Driver pulled from wagon when horse became frightened, 9 N. C. C. A. 1208, note 22. Ivy poison, blood poison following re- moval of, 9 N. C. C. A. 1208-1209, note 22. Stumbling over obstruction in street, whether accident, 9 N\ O. C. A. 1209. Stepping through entrance to eleva- tor, operator injured by, 9 N. O. C. A. 1209, note 22. Thrown from wagon by runaway horse, driver injured, 9 N. C. C. A. 1223, note 23. Cave-in of excavation, employee in- jured by, 9 N. C. C. A. 1223, note 23. Attempting to escape blast about to be fired, employee injured tripping over stone, 9 N. O. C. A. 1224, note 23. Tripping on stairs, salesman killed by, 9 N. O. C. A. 1224, note 23. Explosion of gas stove as accident, 9 N. C. C. A. 1210, note 22. Angina pectoris resulting from ex- haustion, 9 N. C. O. A. 1210, note 22. Delirium tremens, whether caused by alcoholic condition or accident, 9 N. C. C. A. 1211-1212, note 22. Unexplained disappearance, infer- ences arising from, 9 N. C. C. A. 1212, note 22. References to N. C. C. A. Generally Accident defined, 3 N. C. C. A. 586; 5 N. C. C. A. 840. Injury defined, 5 N. O. C. A. 635. Specific occasion of occurrence of ac- cident necessity for, 4 N. C. C. A. 713. Nervous shock as accident, 3 N. C. C. A. 225, 229. Assault Assault as accident, 6 N. C. O. A. 1010, 1024, 1026, 1028-1030. School teacher killed by pupils, death as caused by ' ' accident, " 4 N. C. C. A. 943n. Assault by strikers, whether accident, 4 N. C. C. A. 947n, 6 N. C. C. A. 1026, 1028. H4 New Yoek Appendix. 1181 [Notes on what constitutes an accidental personal injury.] Assault by inmates of reformatory, whether accident, 4 N. C. C. A. 857n. Assault by drunken fellow-employee, 4 N. C. C. A. 522. Felonious act of employer not an ' ' accident, " 4 N. C. C. A. 946n. Heart Disease oe Failure Heart disease as accident, 8 N. C. C. A. 102. Rupture of aneurism of aorta as acci- dent arising out of and in course of employment, 7 N. C. C. A. 646. Continuous strain resulting in heart disease as ' ' injury by accident, " 8 N. C. C. A. 102, 103. Heart failure caused by sudden jerk, 8 N. C. C. A. 103. Fatty degeneration of heart, strain causing death, 8 N. C. 0. A. 103. Heart disease existing, acceleration of by exertion as accident, 8 N. C. O. A. 102, 103, 104. Sufficiency "of evidence to show injury by accident where heart is affected, 8 N. C. O. A. 104, 106. Heat Prostration or Freezing Heat prostration, injury by, 6 N. O. C. A. 710, 715. Artificial heat, prostration by, 6 N. C. C. A. 714, 715. Sunstroke as accident arising out of employment, 6 N. C. O. A. 710, 714. Frostbite and freezing, injury by, 7 N. C. C. A. 982; 6 N. C. C. A. 708, 710; 1 N. O. C. A. 51. Lightning Lightning stroke as accident, 8 N. C. C. A. 192, 196; 9 N. C. C. A. 129. Hernia and Varicocele Varicocele, whether accidental injury arising out of and in course of, etc., 4 N. C. C. A. 859; 6 N. O. C. A. 399, 400. Predisposition to hernia as affecting right to compensation, 6 N. O. C. A. 392. Aggravation of existing hernia, whether compensation allowed for, 6 N. C. C. A. 393, 399. Disease or Injury See also Occupational Disease. Diseased condition, effect of, 7 N. C. C. A. 646. Pneumonia as an accident within the meaning of the act, 4 N. C. 0. A. 899, and note. Eczema from contact with dampened goods not as accident, 4 N. 0. C. A. 713. Gangrene following injury, 4 N. C. C. A. 851n. Pre-existing disease aggravated by injury as accident, 10 N. C. C. A. 757- 759, 768-777. Pre-existing disease, injury accelerat- ing death from as accident within com- pensation acts, 10 N. C. C. A. 759-768. Typhoid fever resulting from drink- ing impure water as ' ' accident ' ' grow- ing out of and incidental to employ- ment, Vennen v. New Dells Lumber Co^ (Wis.), 10 N. C. C. A. 729. Sickness from drinking water or beverage furnished by employer as ' ' ac- cident" within workmen's compensa- tion acts, 10 N. C. C. A. 729. Poisoning Ptomaine poisoning as aecident, 3 N. C. 0. A. 230. Blood poisoning caused by bed sore as proximate cause of death of injured employee, 5 N. C. C. A. 635. Appendicitis disease, not injury, In re Gardner, 7 N. C. C. A. 1179. See also Occupational Disease. Disease as accident, 3 N. C. C. A. 238; 6 N. C. C. A. 482, 494. Poisoning as accident, 4 N. C. C. A. 848, 849n. Septic poisoning following blow on hand, 4 N. 0. C. A. 935n. Poisonous or deleterious matter, per- sonal injury resulting from as accident within meaning of compensation acts, 10 N. C. 0. A. 257-274. 1182 10 Negligence and Compensation Cases Annotated. If 4 [Notes on what constitutes an accidental personal injury.] Chemicals and acids, accidents to em- ployees from, 10 N. C. C. A. 261-269. Gas Poisoning and Asphyxiation Gas fumes in pumping station, whether injury from is accident, 10 N. C. C. A. 274-275. Fumes or gas in mines, accidents to employees from, 10 N. C. C. A. 258-261. Gas poison in wine vat, injury from as accident, 10 N. C. C. A. 272. Occupational Disease Occupational disease as injury, 4 N. C. C. A. 843, 850; 6 N. C. C. A. 482, 494. Occupational disease as injury within compensation acts, 8 N. C. C. A. 1089, and note. Lead poisoning as injury,^ N. C. C. A. 843; 8 N. C. C. A. 1089. Cyanide poisoning, whether disease or injury, 8 N. C. C. A. 1090n. Dermatitis as occupational disease, 8 N. C. C. A. 1091n. Bursitis as occupational disease, 8 N. C. C. A. 1093n. Hemorrhage Hemorrhage as accident arising out of and in course of employment, 7 N. C. C. A. 646. Infection Gonorrheal infection by rubbing in- jured eye as accident, 5 N. C. C. A. 455. Abscess Abscess following breaking of arm, 4 N. C. C. A. 783. Insanity Insanity from shock as accident, 10 N. C. C. A. 1045-1046. Death During Delirium or Insanity Resulting prom Injury Death by suicide following insanity resulting from injury, whether compen- sable, 8 N. C. C. A. 1025, 1029. Employee delirious because of injury, killed after escape from hospital, whether death compensable, 8 N. C. C. A. 1029, 1031n. Nervous Condition or Shock Nervous shock or mental condition as injury by accident arising out of and in course of employment, 10 N. C. C. A. 1041-1051. Nervous condition or shock as acci- dent, 10 N. C. C. A. 1046-1049. Worry, etc. Worry and morbid feeling over con- dition, whether compensable as injury, 10 N. C. C. A. 1051. Fright Fright as accident, 10 N. C. C. A. 1049-1051. Miscellaneous Unexplained death of train employee as accident, 4 N. C. C. A. 716, 732. Blindness caused by poisonous gases as personal injury, 4 N. C. C. A. 527. Eye injured by dust, when inflamma- tion not an accident arising "out of" the employment, 4 N. C. C. A. 945n. Electrician falling on ice, when in- jury does not arise out of employment, 4 N. C. C. A. 853, 854n. Block splitting, injury arising out of and in the course of employment, 4 N. C. C. A. 682. Death from medical or surgical treat- ment necessitated by injury in course of employment as ground for compensa- tion under workmen's compensation act, 6 N. C. C. A. 624, 629. Dust and similar substances, acci- dents to employees from, 10 N. C. C. A. 269-271. Vegetable juice, injury from as acci- dent, 10 N. C. C. A. 271-272. Blood spattering in eye, whether acci- dent, 10 N. C. C. A. 272. Cotton seed oil splashing in eye, H4 New Yoek Appendix. 1183 arising out of and in the course of his employment, 31 without regard whether injury from is accident, 10 N. C. C. A. 272-273. Poisonous insect bites, whether in- dustrial accidents, 10 JT. C. C. A. 275-277. Evidence and Presumptions Death or injury resulting from "acci- dent," sufficiency of evidence of in ab- sence of eyewitnesses, within meaning of workmen's compensation acts, 10 N. C.C. A. 618-645. Unexplained accident when employ- ment not presumed to have caused, 4 N. 0. C. A. 676. 31 — Injured taking short cut in leav- ing premises. — The claimant was em- ployed as a stationary engineer. His employer was engaged in the business of manufacturing store and office fix- tures. On August 5, 1915, after the whistle had sounded for quitting work for the day, the claimant proceeded to leave the factory and in doing so jumped over a pile of lumber to make a short cut out of the factory. He fell and broke his ankle and was disabled for a period of six weeks. The route which he took was not the ordinary way of leaving the premises. His aver- age weekly wage was $14.42. Compen- sation was awarded at the rate of $9.61 for a period of four weeks. Bennett v. Eussell & Sons Co., 6 N. Y. St. Dep. Kep. (No. 35, 1916) 73. Tripped over parcel after punching time-clock. — The claimant was 65 years of age and employed in making arti- ficial flowers. During the latter part of February, 1915, just after punching the time clock at 8:00 a. m., she started to take the elevator to go upstairs when she tripped over a parcel in the passage- way and fell at full length on her face on the floor and received an injury to her right shoulder. She continued work after the accident, with the exception of ten days in March until June 21, 1915, when she was obliged to quit on account of soreness of her shoulder and was not able to work again until August 16, 1915. The commission held that her disability to work was due to the acci- dent and awarded her compensation for the period of her disability. Gray v. DeJong, 5 N. Y. St. Dep. Eep. 404 (1915). Foreman killed leaving premises after work completed. — The deceased was em- ployed as a foreman of about ten men by a company engaged in the construc- tion of a subway. Upon the day of the accident he and the employees under his direction were engaged in picking up tools and cleaning up the tracks, the construction work having been nearly completed. Immediately prior to the accident, he and his men had been work- ing on track 3, near a station. About 5 p. m. he gave notice to his men that it was time to quit and gave direction for the placing of a hand car to one side where it would be out of the way. There was a platform between tracks 1 and 3 and also a platform between tracks 2 and 4. To leave the place where the men were working on track 3, they could use a stairway leading to the platform between tracks 1 and 3 and proceed from the platform to the street. Track 3 was separated from track 4 by what is known as a curtain wall. This is a brick wall about eighteen inches in width, and besides separating the tracks is also used in supporting the streets. There are openings 'in this wall at intervals of ten feet, these open- ings being two feet in width and about six feet in height. They are known as manholes and are used to permit men to pass from one track to the other and as safety niches for the men who are doing repair work while the subway is in operation. The deceased and other employees could also leave the work by passing through one of these manholes from track 3 to track 4 and thence to the platform between tracks 2 and 4. Within 3 or 4 minutes after quitting 1184 10 Negligence and Compensation Cases Annotated. U 4 to fault as a cause of such injury, except where the injury is occasioned time deceased, instead of going up the stairs to the platform between tracks 1 and 3, stepped through a manhole on to track 4, and was struck by a train on that track and instantly killed. It was contended that the accident did not arise out of and in the course of his employment for the reason that he stepped over to track 4 instead of pro- ceeding up the stairway to the platform between tracks 1 and 3. The decision of the commission was as follows: "Em- ployees are under the protection of the compensation law for a reasonable period of time subsequent to the day's work while they may be engaged in getting ready to leave the premises or arranging for the next day's work and also for a reasonable period of time to enable them to leave the premises. After considering all the facts surround- ing this claim we are of the opinion that the injury that resulted in the death of the deceased was a natural risk of his employment and that such injury arose out of and in the course of his employment. The work was under- ground and exposed the employees to extraordinary risks. The compensation law should apply to any injury which is a natural incident to subway work from the time the workman enters the sub- way to the time he reaches the street." As to a contention that the curtain wall between tracks 3 and 4 constituted a warning to employees not to pass from one track to the other, the commission said: "This suggestion has no weight in view of the manholes existing in the wall which of themselves were an invi- tation to the employees to pass from track 3 to track 4 in the absence of any rule or warning to the contrary. * * * There was no evidence, of course, from which it may be definitely determined that the deceased intended to leave the subway by crossing track 4 and we believe he may have stepped ou to this track in the discharge of his duties to his employer. The de- ceased and his men had performed work on track 4 during the same day, further up the line. He was a foreman and by reason of this relationship be- tween himself and his employer he had considerable lee-way as to the manner in which his duties should be per- formed. It is natural to presume that he may have stepped through the man- hole to ascertain whether any tools or material had been left near track 4. Under section 21 of the compensation law a presumption is created that the claim comes within the provisions of the act and no substantial evidence has been produced before the commission to contradict such presumption in this case." The commission said that in principle this claim could not be dis- tinguished from White v. New York Cent. R. Co., 2 N. Y. St. Dep. Rep. 477, 9 N. 0. C. A. 1283, and North Carolina R. Co. v. Zachary, 232 TJ. S. 248, 9 N. 0. C. A. 109. Commissioner Lyon dis- sented. Di Paolo v. Crimmins Con- tracting Co., 1 St. Ind. Comm. Bull. (No. 3, 1915) 7, 5 N. Y. St. Dep. Rep. 428 (1915). Injured leaving work after having been suspended. — The deceased was em- ployed in a subway tunnel under con- struction. On April 27, 1915, he had re- ported for work a little late and had been reprimanded by his boss who was also his brother, and was suspended from work. While leaving the work and going to an exit from the tunnel he accidentally fell from a foot path made of plank, re&eiving a broken spine, and other injuries from which he died. An award of compensation was made for the benefit of his dependents. Kiernan v. Friestedt Underpinning Co., 5 N. Y St. Dep. Rep. 390 (1915-). Employee Injured by motorcycle used in going to work. — Defendant was en- gaged in the business of making monu- ments. Claimant, on the day of the U4 New York Appendix. 1185 [Notes on accidents arising out of and in course of employment.] injury and for some time prior thereto, had come to work on a motorcycle which was owned by himself. He had used the motorcycle for going to and from jobs with the knowledge and consent of his employer, but was not paid extra' for the use of the motorcycle. On the day of the injury he arrived at his employer's place of business and before starting to work placed the motorcycle against » tree on the property adjoin- ing the premises of his employer. He started to clean the clutch so that the machine might be in good working order for the day. While thus engaged, his fingers were caught in the chain guard, resulting in traumatic amputa- tion of the distal phalanges of the first and second fingers of the right hand. The commission found that the injuries were accidental; that they arose out of and in the course of the employment; and that claimant was in the protection of the compensation act, and was en- titled to compensation. From the award, the employer and insurance carrier ap- pealed. In affirming the award the court said: "The appellants contend that the accident was not one arising out of and in the course of the employ- ment. There is some evidence tending to prove those facts, and under section 20 and 21 of the workmen's compensa- tion law the decision of the commission is conclusive upon the facts. Clearly, if the bicycle was only used for the con- venience of the claimant in bringing him to and from his place of work, the case would not be within the act. But the evidence shows that from time to time it was used in the business in going to and from the work off the premises, and that at other times, when it had been cared for during working hours, no question had been raised by the em- ployer. It could not be used in the business, unless kept in proper condi- tion. The fact that the workman was engaged upon it near the place of busi- ness and during working hours, and that it was frequently used in the business, do not make the findings of the com- mission unreasonable." Kingsley v. Donovan, — App. Div. (N. T.) — , 155 N. Y. Supp. 801 (1915), aff'g 9 N". C. C. A. 1220. Salesman injured inspecting machin- ery. — The claimant was a salesman and it was his duty to inspect machinery when calling upon the customers of his employer. While inspecting machinery in the plant of one of his employer's customers at North Hampton, Pa., a piece of machinery fell on the great toe of his right foot, necessitating ampu- tation. It was held that the injuries were received while the claimant was in the course of his employment and that he was entitled to compensation. Benton v. Fraser, 5 N. Y. St. Dep. Eep. 392 (1915). Injured while riding in automobile. — The claimant was employed as pur- chasing and sales agent and assistant to the manager of his employer's busi- ness. While riding in an automobile near Martinsburg, W. Va., where he was engaged in inspecting and buying fruits, the automobile turned over and he was badly injured. It was held that the injuries were accidental injuries and arose out of and in the course of his em- ployment. An award of compensation was made. Sickles v. Ballston Re- frigerating Storage Co., 5 N. Y. St. Dep. Eep. 382 (1915). Person injured at noon hour outside gate of premises before being accepted as employee. — The claimant and his employer entered into an agreement whereby the claimant was to be allowed 115 weeks at $11.54 per week for the loss of claimant's eye, $152 of which was paid. The insurance carrier having learned that the accident did not arise out of and in the course of claimant's employment brought the case on for the determination of the board. The 1186 10 Negligence and Compensation Cases Annotated. H 4 by the willful intention of the injured employee to bring about the injury claimant was employed by the Clyde Steamship Company, at Pier 37, North River. The men were not hired by the steamship company for any length of time but worked as their services were required. After the time for lunch was over, some signal was given and the men who first appeare-d at the gate on the pier and had their tickets punched were accepted for the afternoon service and some of the last to come were fre- quently left without employment for the afternoon, and for this reason there was considerable hurrying to get into line. The weight of the evidence tended to show that the claimant was injured outside of the gate while the men were clamoring to have their tickets punched and before the claimant's ticket had been punched and claimant accepted for the afternoon. The com- mission held that the injury did not arise out of and in the course of his employment on the ground that he stepped out of his employment when he left the company's pier and went upon the street for the purpose of the noon hour and he had not been accepted for the afternoon at the time the accident occurred. The claim for compensation was denied. Sokol v. Clyde Steamship Co., 6 N. T. St. Dep. Rep. (No. 31, p. 55, 1915). Killed on railroad track while return- ing home. — The deceased was employed at one of the Standard Oil Company's plants which was located on a private road made of cinders. This road ran parallel to a railroad for several hun- dred feet, then turned to the east and crossed the railroad tracks. On Sunday, December 13, 1914, the deceased went to the plant to feed and care for the mules used in delivering oil. After com- pleting his work he left the plant about noon, apparently to return to his home. Instead of using the private road as was his custom, for some reason he started to walk on the railroad tracks, when he was struck by a train and killed. The question at issue was whether the acci- dent arose out of and in the course of his employment. In passing upon this question the commission said: "The general rule undoubtedly is, that an employee who has finished his work is under the act, until he has completely left the plant, or, at least, has had suffi- cient time to leave it and come upon a public highway or upon a place en- tirely disassociated from the plant. When he has so left the plant, unless he is still upon some errand or duty for his employer, he is no longer covered by the act. Under this rule if Mr. Hotal- ing (the deceased in this ease) had kept to the private road and had been killed before he left the public highway, no doubt his widow would be entitled to compensation. In that case he would have been, constructively at least, still upon his employer's plant; but when he left the private road r and for some reason of his own, went upon the tracks of the railroad, a third party, he lost the protection of the statute and the widow can no more claim compensation than as though he had been killed upon the public highway on his way home. The accident did not arise out of and in the course of the employment and the claim for compensation must be de- nied." Hotaling v. Standard Oil Co., 1 St. Ind. Comm. Bull. (No. 1, 1915) 12, 6 N. Y. St. Dep. Rep. (No. 33, p. 68, 1915). Traveling salesman injured while rid- ing in public bus. — The claimant was employed as a traveling salesman by the manufacturer of leather and other fabric novelties, with a principal place of business in the City of New York. On October 11, 1915, while the claim- ant was riding in a public bus from White Plains to Port Chester, N. Y., the bus ran into a wagon loaded with coal and the claimant was thrown out and injured. As a result of his injury he H4 New Yoek Appendix. 1187 or death of himself or of another, or where the injury results solely was disabled from the date of the acci- dent until December 6, 1915. At the time of the accident he was driving from one town to another for the pur- pose of selling goods. Compensation , was awarded at the rate of $11.64 weekly, for a period of six weeks. Mandle v. Steinhardt & Bro., 6 N. Y. St. Dep. Rep. (No. 36, p. 91, 1915). Employee injured riding on truck on highway while going to office where he was required to report before going home. — The claimant was employed as a painter and was working some distance from his employer 's office where he was required to report at the close of the day's work before going home. He stopped work about 5 p. m., and started for *the office, jumped upon a truck which was passing along the street or highway, and after riding a short dis- tance, was thrown off by a sudden jolt of the truck and sustained a fracture of/ the patella. The question at issue was whether the' injuries arose out of and in the course of the employment. In passing upon this case the commis- sion said that the general rule that acci- dents which happen while a workman was going to arid returning from work were not considered incidental to the employment, did not apply where a, workman was required to be upon the street in the performance of his work. In this case the claimant was required to report to the office before going home and*his employment was not ter- minated until he had reached the office. But the point decided was whether the particular injury received by the claim- ant was due to an accident which was a natural risk of the employment, or, in other words, whether the accident arose out of the employment. The com- mission held that the injury received by the claimant was not due to any ordinary risk of the public highway. "Had this claimant taken a street car and received an injury in consequence or suffered an injury while crossing the street or passing along the sidewalk, an entirely different question, and one very likely resulting in a different decision, would have been presented." Thereupon, the commission disallowed the claim. Peers v. De Carion & Co., 1 St. Ind. Comm. Bull. (No. 2, 1915) 10, 5 N. T. St. Dep. Eep. 425 (1915). Helper on automobile truck killed chasing boys therefrom. — Deceased was a helper on an automobile truck owned by defendant, who was engaged in the wholesale grocery business. As the truck was proceeding along the street some boys hung on to the rear part of it. Deceased ordered them to get off, but they refused, whereupon he jumped off the truck to chase them away. In doing so he fell upon the pavement, and fractured his skull, death resulting. In holding that the injury arose out of and in the course of the employment, the court said: "It was undoubtedly a part of his duty to protect the load and drive away meddlesome persons and mischievous boys. Certainly his injury arose 'out of the fact that he was em- ployed on the truck, and it may be fairly said it arose 'in the course of his duty to keep these troublesome boys from doing damage to his employer's wagon and goods. In attempting to perform this duty he was fatally in- jured. That he was impetuous and im- pudent, if such be the fact, bears not at all upon the question before us." Hendricks v. Seeman Bros., — App. Div. (N. y.) — , 155 N. Y. Supp. 638 (1915), aff'g 9 N. C. C. A. 1219. Driver of delivery wagon injured while assisting in delivering flowers — Putting up flower box. — The claimant was employed as a driver of a delivery wagon. His employer was engaged in the florist business. It was the claim- ant's duty to drive the wagon and to assist the man on the wagon in deliver- ing goods. While making deliveries, the 1188 10 Negligence and Compensation Cases Annotated. H 4 from the intoxication of the injured employee while on duty. Where claimant was assisting the other man on the wagon to adjust a window box in a house to which they had delivered flowers. He lost his balance and fell from the ladder on which he was stand- ing, the window box falling on him. He suffered a compound fracture of the thumb, and lacerations of the same. The wound later became infected and tetanus developed by reason of which he died. The work of assisting and delivering goods was incidental to the operation of the vehicle. The deceased left surviving him a widow, 34 years of age, and two children aged 7 and 5 re- spectively. His average weekly wages were $19.23. Compensation was award- ed the widow at the rate of $5.77 weekly during widowhood with two years com- pensation in one sum upon remarriage. An award was further made for the ben- efit of the children at the rate of $1.92 weekly each until they shall have reached the age of eighteen years. Glatel v. Stumpp, 6 N. Y. St. Dep. Eep. (No. 35, p. 66, 1915). Eye injured by scissors thrust through crack in toilet partition by fellow-em- ployee. — Claimant, a girl 15 years of age, was employed as an operator of a buttonhole machine. Connected with the factory were two adjoining toilet rooms having partitions between them. On the day of the accident, claimant went to the toilet and was struck on the arm by something. She looked through a crack in the partition between the toilets, when a girl in the adjoining toilet thrust scissors through the crack into her eye, causing a, loss of 75 per cent, of the vision of the right eye, and consequently the loss of the use of the eye. In reversing an award for claim- ant, the court held that the injury was accidental within the meaning of the act; and that the accident arose in the course of employment, but not "out of" it. The court said: "Undoubtedly, while accepting the conveniences of the toilet, the claimant was still in the em- ploy of the master. * * * Her being there was reasonably incidental to and within the scope of her employment. It was in the interest of her employer, as well as of herself, that she should be able to continue her work without physical inconvenience. ' ' Had an accidental injury resulted from the condition of the room or of the toilet appliances, the injury might properly have been held to have arisen out of the employment. In fact, had there been a nail or a scissors blade im- bedded in the wood, and projecting from the side of the partition, which accidentally injured her eye as she turned to see what touched her, I think the injury would have been incidental to the use of the room for toilet pur- poses, and claimant entitled to an award. However, the injury resulted solely from the sportive act of a co- worker, who was in no way represent- ing the master, and which act in no way grew out of or was connected with the employment. * * * In the case at bar there was no causal connection between the work and the injury result- ing from the independent affirmative act of a co-worker." DeFilippis v. Falkenberg, — App. Div. (N. Y.) — , 155 N. Y. Supp. 761 (1915), rev'g 9 N. 0. C. A. 1217. Crushed while sleeping in stone crusher. — The deceased was employed as a laborer and machinist's helper. His employer was engaged in the general contracting business. On July 31, 1914, the employer was doing some construc- tion work, and in connection therewith was operating a very large stone crush- ing plant. The deceased came on duty at 8 o'clock at night and was due off at 4 o'clock in the morning following. While the deceased was working at or near the stone crusher, he and the other men were told by the foreman at about twelve o'clock midnight that the work 114 New York Appendix. 1189 [Notes on accidents arising out of and in course of employment.] was slack and that they could do as they pleased untii almost quitting time, when they should finish what was to be done. The stone crusher was not oper- ated that night up to 4 o 'clock a. m. It was a very cold and chilly night and in order to keep warm during the period of waiting, deceased climbed into the drum of the stone crusher. The crusher accumulated a great deal of heat during its operation during the day, which it retained after stopping; and the men sometimes would go in- side the large box where the gears were situated to get warm. At about four o 'clock on the said morning the stone crusher was started by someone with- out the knowledge of deceased 's being inside and he was crushed to death by the operation of the crusher. An award of compensation was made for the ben- efit of his father, aged 53, his mother, aged 55, at the rate of $1.52 weekly during their dependency, and for a sister aged 7 years, at the rate of $1.52 weekly, until she should arrive at the age of 18 years. The claim of two brothers ages 14 and 16 respectively were denied, on the ground that they were not dependent at the time of the accident. ' DeGazio v. Kerbaugh, Inc., 6 N. Y. St. Dep. Eej). (No. 36, p. 89, 1915). Killed going to toilet. — The deceased was employed by a construction com- pany, engaged in constructing a por- tion of a new subway. It was very dark in the subway, and at a distance of about 200 feet from where the de- ceased worked was a siphon (a hole dug to drain the subway from which water was siphoned into the sewer). This siphon was protected by an iron rail and a dim red light was kept there night and day. At about 9:30 p. m., the deceased left his work to attend to a call of nature. He went towards the siphon and accidentally fell in and was drowned. There were no toilets in the I subway for the use of the men in answering a call of nature. It was held that the injuries which resulted in his death were accidental injuries and arose ' out of and in the course of his em- ployment. An award of compensation was made for the benefit of his depend- ents. Cino v. Morton & Gorman Con- tracting Co., 5 N. Y. St. Dep. Eep. 387 (1915). The deceased was employed in the trucking and livery business and while either shoveling dirt in the street from the ground to a wagon or while he had gone to a nearby building to relieve nature, he stepped on a nail which punc- tured his foot and caused lockjaw, which resulted in his death. The commission held that the deceased's injury arose out of and in the course of his em- ployment. An award of compensation was therefore made. Putnam v. Mur- ray 1 St. Ind. Comm. Bull. (No. 4, 1915) 9, 6 N. Y. St. Dep. Eep. (No. 33, p. 73, 1915). Syrup boiler killed while assisting fellow-employee to start elevator. — De- fendant was engaged in canning and preserving fruits. The decedent was employed as a syrup boiler, but was called upon from time to time to make use of an elevator in bringing glucose to his boiling pot. This same elevator i was used by the other employees in a like manner, no one being regularly em- ployed to operate it,, but the company employed an engineer, whose duty it was, to keep the elevator in repair. On March 31, 1915, decedent was at work on the third floor of the com- pany's building when one Kelly, an- other employee, came down with the elevator from the fifth floor and stopped just below the third floor. In some manner the operating cable became en- gaged with the floor of the elevator, and it refused to move either up or down. The decedent went to the assistance of Kelly and jumped down into the ele- 1190 10 Negligence and Compensation Cases Annotated. H 4 [Notes on accidents arising out of and in course of employment.] vator car and grabbed hold of the operating cable with his hands, and so manipulated it that the obstruction was removed and the car fell to the basement, taking the decedent with it and producing injuries from which he died. From an award of compensation by the State Industrial Commission for the benefit of the dependents, the em- ployer and the insurance carrier ap- pealed. The appellants contended that the company having provided an en- gineer for the purpose of keeping all machinery in repair, the act of the dece- dent in attempting to aid Kelly in starting the elevator was outside of his duties as a syrup boiler, and that therefore the personal injuries sustained by the decedent did not arise out of and in the course of his employment. In passing upon these contentions, the court said: "It is doubtless true that the facts would not support a judgment under the common law, nor under the Employers' Liability Act (Consol. Laws, «. 31, §§ 200-204); but the work- men's compensation act contemplates charging the industrial life of the state with the burden of accidents inci- dent to such industry, within the limits fixed by the act, and we are not pre- pared to hold that a common laborer is not in 'the course of his employment' when he steps aside from his immediate employment to give an incidental aid to a fellow-employee engaged in the operation of a freight elevator, which is operated in common by all the em- ployees. It does not appear that the elevator had been broken or damaged; merely that it had ceased to respond to the operating cables, and to say that a man who is at work near the point may not lend a hand in starting the ele- vator without sacrificing his rights under the law, is too narrow a construc- tion to apply in the construction of the statute. If the decedent had himself been using the elevator as Kelly was doing — and this was among his duties — there would have been no doubt of his being protected while trying to start the elevator, even though Hills Bros. Company had employed an en- gineer to make repairs, and no good rea- son suggests itself why he might not have left his boiling pots for a few moments to aid a fellow-laborer in an effort to start this same elevator. "We think the award of the State In- dustrial Commission should be ap- proved." Martucci v. Hills Bros. Co. — App. Div. (N. T.) — , 156 N. Y. Supp 833 (1915). Jumping into river to avoid injury — Tuberculosis caused by. — On September 3, 1914, the claimant was working for his employer on the Mohawk Biver oper- ating a crane. One of the timbers of the crane broke, and to save himself from being hurt he jumped into the river, a distance of some ten feet. The water came up to his knees. He waded to the shore, contracted a heavy cold and pleurisy which developed into pul- monary tuberculosis, by reason of which he was disabled from the date of the accident until February 25, 1915, and since that date. Compensation was awarded and the employer and the in- surance carrier appealed. In passing upon the appeal the court said: "The finding of the commission that the claimant's present condition is the re- sult of the accidental breaking of the timber, and that his going into the river resulted therefrom, is not unreasonable, and has some evidence to sustain it. We cannot question it. While the claim- ant jumped into the water, he did so to prevent a personal injury from re- sulting from the accidental breaking of the timber. The jumping into the river was therefore not a voluntary act, but was the result of the accident, which put the claimant in such peril that his getting wet must be considered acci- dental rather than voluntary. Subdi- H4 New Yobk Appendix. 1191 [Notes on accidents arising out of and in course of employment.] vision 7 of section 3 of the workmen's compensation law defines injury and personal injury to mean only accidental injuries arising out of and in the course of the employment, and such diseases and infection as may naturally and un- avoidably result therefrom. We con- sider the claimant in the same position as if the accident had thrown him into the river, and clearly his being thrown ten feet into the water was an injury within the meaning of the act, and the disease following has been found to naturally and unavoidably result from that injury. The award should there- fore be affirmed. Eist v. Larkin & Sangster, — App. Div. (N. Y.) — , 156 N. Y. Supp. 875 (1915), aff'g 9 N. C. C. A. 1215. 1 Drowned while swimming. — The de- ceased and Edward Healy were delivery men for Macy & Company for certain territory on Long Island. Monday was a short day because on Mondays they had deliveries for the sales made on Saturday and Saturday being a half holiday the sales were much smaller than on other days and they usually finished the day 's deliveries about' noon. Shortly after 12:00 o'clock noon of Mon- day, August 10, 1914, the two had fin- ished their work and started for the stable to put their teams up, when the deceased suggested that, as it was a hot day, he would go in for a swim, they being in the vicinity of Jamaica Bay. Healy made no objections but stayed on the wagon. The deceased went into the water and was drowned. The commission held that the accident did not arise out of and in the course of his employment, on the ground that it was no part of his duty to go in swim- ming and that there was no basis for the claim that it was necessary for him to go in swimming to prevent prostra- tion from the heat. McManus v. Macy & Co., 6 N. Y. St. Dep. Eep. (No. 31, p. 60, 1915). 10 N. C. C. A. N. Y. App.— 4 Salesman injured while acting as su- perintendent. — The claimant was em- ployed as salesman and superintendent of the manipulation of goods sold by his employer, a steel importer and mer- chant. In respect of goods sold by his employer, the salesman who made the sale was required to act as superintend- ent of the forging of the steel by the purchaser so as to advise the purchaser as to the proper working of the ma- terial. While superintending the forg- ing of steel at the plant of the Hy- draulic Pressed Steel Company, which he had sold for his employer to that company, a drift pin flew and struck him on the right leg above the knee, causing a complete ob- lique fracture of the right femur and abrasions of the skin of the right elbow. The commission held that the injuries were accidental and arose out of and in the course of his employ- ment. Tompkins v. Darwin & Milner, Inc., 6 N. Y. St. Dep. Rep. (No. 32, p. 54, 1915). Injured grinding knife during lunch hour under express instructions of employer. — The claimant was em- ployed as a butcher by a corporation engaged in the business of the prepara- tion of meats. The duty of the claim- ant was to cut up carcasses, take off the hides and take out the bones. While sharpening his knife on a steam grind- stone during the lunch hour, under the express instructions of his employer he cut his thumb, disabling him from work for a period of three and one sixth weeks. An award of compensation was made. Wippelhauser v. Eohe & Brother, 6 N. Y. St. Dep. Eep.' (No. 34, p. 57, 1915). Moving elevator, operator boarding, 9 N. O. C. A. 1214, note 23. Biding on hoist as taking employee out of course of employment, 9 N. O. C. A. 1214-1215. Washing soda glasses, hand cut by 1192 10 Negligence and Compensation Cases Annotated. H 4 [Notes on accidents arising out of and in course of employment.] glass while, 9 N. C. C. A. 1215, note 23. Forced jump into river, whether in course of employment, 9 N. C. C. A. 1215, note 23. Going for time slip, employee in- jured while going for, 9 N. C. 0. A. 1215-1216, note 23. Dislodging stone from crusher, em- ployee struck by bar while, 9 N. C. C. A. 1216, note 23. Collapse of burning building, em- ployee killed by, 9 N. C. C. A. 1216, note 23. Rolling fly wheel, machinist crushed while, 9 N. C. C. A. 1216-1217, note 23. Eye injured by scissors thrust i through crack by fellow-employee, 9 N. C. C. A. 1217, note 23. Struck in eye by tack fastener tossed by fellow-employee, 9 N. C. 0. A. 1217, note 23. Turning wagon too short, driver killed by, 9 N. C. C. A. 1217, note 23. Crossing track to dinner, laborer killed while, 9 N. C. C. A. 1217-1218, note 23. Drink of water, employee struck by train' while getting, 9 N. C. C. A. 1218, note 23. Wiping engine, clothing fired by lighted waste while, 9 N. C. C. A. 1218, note 23. Traveling on private path, employee injured on before beginning work, 9 N. C. C. A. 1218, note 23. Mailing letter on way home, injured while, 9 N. C. C. A. 1219, note 23. Chasing boy from automobile truck, employee injured while, 9 N. C. C. A. 1219, note 23. Motorcycle used in going to work, employee injured by, 9 N. C. C. A. 1220, note 23. Seeking shelter from storm, employee injured while, 9 N. C. C. A. 1220, note 23. Attempting to board boat, whether employee in course of employment, 9 N. C. C. A. 1221, note 23. Entering moving train, employee in- jured, 9 N. C. C. A. 1221, note 23. Using master's horse for own con- venience, injured while, 9 N. C. C. A. 1222, note 23. Idle employee, order to find job as ex- tending scope of employment, 9 N. C. C. A. 1222-1223, note 23. Taking shorter and more dangerous path, whether employee taken out of course of employment, 9 N. C. C. A. 1223, note 23-. References to N. C. C. A. Scope of Employment Employment defined, 4 N. C. C. A. 516, 683. Employment not limited to fixed hours, ascertainment whether injury arises out of and in course of 7 N. C. C. A. 411. Beginning of employment, with refer- ence to employer's liability, 4 N. C. C. A. 112, 114n. Ending of employment, with refer- ence to employer's liability, 4 N C. C. A. 112, 114n. Existence of relation of employer and employee, necessity for, 4 N. C. 0. A. 819. Employment procured by false state- ment as affecting status as employee, 8 N. C. C. A. 986, and note. Act outside of scope of employment, injury in performing, 4 N. C. C. A. 937. Injury sustained outside of scope or ambit of employment as compensable, 9 N. C. C. A. 647-664. Whether performance of work in way other than required takes employee out of course of employment, 9 N. C. C. A. 652-656. Performance of work in place other than required as taking employee out of course of employment, 9 N. C. C. A. 656-662. Acts in no way connected with em- 114 New Yoek Appendix. 1193 [Notes on accidents arising out of and in course of employment.] ployment as taking employee ,out of course thereof, 9 N. C. C. A. 662-664. Emergencies, acts performed in as being within sphere of employment under compensation acts, 10 N. C. 0. A. 475-492. Sphere of employment, prohibitions limiting as distinguished from prohibi- tions dealing with conduct within, as affecting recovery of compensation, 10 N. C. C. A. 342-359. Violation of prohibitions dealing with conduct within sphere of employment, effect on recovery of compensation, 10 N. C. C. A. 344-359. "Out op and in the Course op" Arising "out of" the employment, defined, 4 N. C. C. A. 512, 522. "In the course of" the employment, defined, 4 N. C. C. A. 512, 522. Injury "out of and in course of" employment, 3 N. C. C. A. 239, 268, 283, 585. Arising "out of" the employment, defined, 4 N. C. C. A. 512, 522, 941n. "Out of" the employment, what necessary to show that injury arose, 4 N. C. C. A. 941n. Unauthorized act, injury while per- forming, not an accident arising "out of" the employment, 4 N. C. C. A. 947n. Bye injured by dust, when inflamma- tion not an accident arising "out of" the employment, 4 N. C. C. A. 945n. Elements of injury arising "out of and in the course of" employment, 4 N. C. C. A. 522. Disobedience of rules, whether in- jury an "accident" arising "out of" tie employment, 4 tt. C. C. A. 944n. Disobedience of rules, directions or regulations as taking employee out of course of employment, 10 N. O. C. A. 349-359. Deviation from specific duties as tak- ing employee out of course of employ- ment, 10 N. C. O. A. 344-349. Intoxication as arising "out of" employment, 9 N. C. C. A. 253-257. Sportive Act Sportive act of fellow-employee caus- ing injury, whether injury arises out of and in the course of employment, 8 N. O. C. A. 283. Skylarking of fellow-employees and other person, injuries from, as arising out of and in course of employment, 5 N. C. C. A. 798, 799; 8 N. C. C. A. 287. Casting thrown in scuffle between other employees, whether injury an ac- cident arising out of and in the course of, etc., 4 N. C. 0. A. 855n. Death due to fall dodging "pass" of fellow-workman, 8 N. C. C. A. 283. Caustic soda put in beer by fellow- workman, causing injury, 8 N. C. C. A. 284. Ball of clothing thrown in spirit of fun, causing injury, 8 N. C. C. A. 285. Wrestling, injured while, as accident arising out of the employment, 8 N. C. C. A. 286. Scuffling of fellow-employees, injured by, 8 N. C. C. A. 287. Disobedience op Bules, Orders, etc. Disobeying rules, when compensation denied for injury received by, 4 N. C. C. A. 881, and note; 8 N. C. C. A. 889, 905. Disobedience of orders, death caused by, 4 N. C. C. A. 738, 876. Violation of rules, effect on employ- ment, 8 N. C. C. A. 889, 905. Disobedience of unenforced rule or order, recovery of compensation for in- jury resulting from, 8 N. C. C. A. 891, 893n. Disobedience of warning not under- stood, injury while, 8 N. C. C. A. 890n. Violation of shop rules, whether re- covery of compensation for injury re- sulting from, is defeated by, 8 N. C. C. A. 897, 899n. Violation of mining rules as affecting 1194 10 Negligence and Compensation Cases Annotated. H 4 [Notes on accidents arising out of and in course of employment.] recovery of compensation for injury, 8 N. C. C. A. 893, 895. Disobeying instructions to further employer's interests, injury while, 8 N. C. C. A. 902n. Violating speed laws, injured while, 8 N. C. C. A. 904, 905n. Loaned Servant Liability for injury to employee lent on hire by employer to another, 9 N. C. C. A. 402, 405. Miscellaneous Blindness caused by gases as injury arising out of and in the course of the employment, 4 N. C. C. A. 527. Death from medical or surgical treat- ment necessitated by injury in course of employment as ground for compensa- tion under workmen 's compensation act, 6 N. C. C. A. 624, 629. Tree trimmer employed to trim along wires injured while working across street from wires under orders of em- ployer 's foreman, 5 N. C. C. A. 449. Carpenter turning on electric current to operate grindstone to sharpen chisel, as acting in scope of employment, 5 N. 0. O. A. 790. Eye injuries, when accident arising out of and in the course of employ- ment, 6 N. C. C. A. 880, 886. Time and Place op Injury Time and place at which injury re- ceived, 4 N. C. C. A. 110, 112n, 128. Specific occasion of occurrence of accident, necessity for, 4 N. C. C. A. 713. Biding in employer's conveyance, in- juries in, 4 N. C. C. A. 124, 129, 549. Elevators, injury in riding in, 4 N. C. C. A. 127n. Going to work, injuries received while, 4 N. C. O. A. 110, 112, 114n; 7 N. C. C. A. 409. Before working hours, injuries re- ceived on premises, 4 N. C. C. A. 117n, 851n. Before commencing work, injuries re- ceived, 7 N. C. C. A. 409, 414-415. Cessation of employment, when order of foreman to stop work temporarily not equivalent to, 4 N. C. C. A. 682. Cessation of work, injuries received during, 4 N. C. C. A. 118n; 7 N. C. C. A. 428. Noon hour, injuries received during, 4 N. C. C. A. 118, 121n; 5 N. C. C. A. 617. Lunch time, injured during, 7 N. C. C. A. 432. Going to luncheon, whether injury received arises out of and in the course of, etc., 4 N. C. C. A. 867; 5 N. C. C. A. 616; 7 N. C. C. A. 431. Returning home to luncheon, injury while, 7 N. C. C. A. 410. Hair catching in machinery as em- ployee preparing to leave at noon, 4 N. C. C. A. 584. Punching time clock, whether injury in so doing arises in course of employ- ment, 4 N. C. C. A. 852; 5 N. C. C. A. 618. Getting drink of water, injuries re- ceived while, 4 N. C. C. A. 122n. Water closet, employee killed on the way to, 4 N. C. C. A. 778. Going to procure material for work, 4 N. C. C. A. 716. Going for pay, injuries received in, 4 N. C. C, A. 122, 123n. Working for others during work hours, injured while, 7 N. C. C. A. 433. Overtime work, injuries while en- gaged in, 4.N. C. C. A. 123, 124; 7 N. C. C. A. 426. Reporting off duty, injuries received in, 4 N. C. C. A. 123n. Injury after working hours, when an accident arising out of and in the course, etc., 4 N. C. C. A. 117n, 851; 7 N. C. C. A. 419. Returning home, injury received while, 4 N. C. C. A. 114, 117n. 114 New Yoek Appendix. 1195 the injury is occasioned by the willful 32 intention of the injured employee Loitering on employer's premises, in- jured while, 7 N. C. C. A. 421, 422. Leaving employer's premises, injury while, 7 N. 0. C. A. 420. Sleeping on premises, injury received while, 4 N. C. C. A. 121n. Street risks, as incidental to employ- ment, 5 N. C. C. A. 986. Collector run over by tramcar, risk incidental to employment, 5 N. C. C. A. 989. Collector kicked by horse, risk inci- dental to employment, 5 N. C. C. A. 989. Drayman run over while returning from purchase of drink, accident aris- ing out of and in course of employ- ment, 5 N. C. C. A. 985. Horse being watered by employee in- tending to use him thereafter for Ms own purposes, whether injury out of and in course of employment, 4 N. 0. C. A. 516. Evidence and Presumptions Circumstances warranting finding that accident arose out of and in the course of the employment, 5 N. C. C. A. 840. Unexplained accident, when employ- ment not presumed to have caused, 4 N. C. C. A. 676. Several possible causes of injury, when injury will be inferred to have arisen out of and in the course of the employment, 4 N. O. C. A. 939n. Burden op Proof Burden of proof to show right to compensation, 4 N. C. C. A. 858n. Burden of proof that death was by accident arising out of and in course of employment, 4 N. C. 0. A. 738. Burden of proof that injury arose out of and in the course of the employment, 5 N. C. C. A. 455. 32 — Biding on top of car contrary to general instructions which were not strictly enforced. — The claimant was employed as a laborer in the road de- partment of the defendant, a corpora- tion engaged in both interstate and intrastate commerce. The claimant had been unloading ties for his employer at Bed Hill, N. Y. When this work was finished, he and the other men in his gang got onto a road department car to be carried to Fallsburgh, N. Y., a dis- tance of about ten miles, where they were to do further work. The claimant and some of the men got on top of the car next to the engine in order to get fresh air. On the approach to Falls- burgh the train went into a tunnel, and the gases from the smoke-stack were thrown on the claimant and caused him to become dizzy, and he fell off the car and was run over by one of the rear ears of the train, sustaining injuries which necessitated the amputation of his leg at the knee joint. The claimant had no duties to perform on top of the car and there was a general rule that these laborers should not ride on top of the cars, but this order was not strictly enforced. There were other cars and a caboose behind the car on which the claimant was riding, and the conductor was in the caboose and could see whether or not any one was riding on top of the cars, but no objection was made. An award of compensation was made at the rate of two-thirds of his average weekly wage for a period of 288 weeks. Caccavano v. New York, 0. & W. Ry. Co., 6 N. Y. St. Dep. Bep. (No. 34, p. 59, 1915). Using condemned timbers, whether serious and wilful misconduct, 9 N. 0. 0. A. 1227, note 24. Taking up board in motor truck to allow machinery to work better as mis- conduct, 9 N. C. C. A. 1227-1228, note 24. Disobedience of rules as serious and wilful misconduct, 9 N. C. C. A. 1228, note 24. 1196 10 Negligence and Compensation Cases Annotated. 114 to bring about the injury or death of himself or of another, or where the injury results Solely from the intoxication 33 of the injured employee while on duty, neither the injured employee nor any dependent of such employee shall receive compensation under this chapter. 51 5. Alternative remedy. § 11. [As amended, Laws 1914, c. 316.] The liability prescribed by the last preceding section shall be exclusive, 34 except that if an employer References to N. C. C. A. "Serious and 'wilful misconduct," what constitutes, 2 N. C. C. A. 852, 883; 5 N. C. C. A. 635, 645. Disobedience of order as serious and wilful misconduct, 5 N. C. C. A. 645. Intoxication as wilful misconduct, 3 N. C. C. A. 661n; 9 N. C. C. A. 257-263. Failure of employee to use safe- guards furnished by employer as wilful misconduct under compensation acts, 9 N. C. C. A. 466, 481. Violation of employer's rule as wilful misconduct, 3 N. C. C. A. 703n. Using rope instead of ladder, whether injury from fall by so doing is miscon- duct, 4 N. C. 0. A. 876. Refusal to submit to examination, whether serious and wilful misconduct, 4 N. C. C. A. 864n. Wilful misconduct, burden of proof and sufficiency of evidence, 2 N. C. C. A. 852. Conclusiveness of findings as to, 5 N. C. C. A. 635. Sphere of employment, violation of prohibitions limiting as wilful miscon- duct, 10 N. C. C. A. 342. Disobedience of rules, directions, or regulations as wilful misconduct, 10 N. C. C. A. 349-359. Deviation from specific duties as wil- ful misconduct, 10 N\ C. C. A. 344-349. 33 — Intoxication and alcoholism — Death from. — The deceased was em- ployed as night watchman and the clock which it was his duty to punch, when he made his rounds, showed that he had worked up to 11:45 p. m. In the early morning he was found lying behind one of the boilers in the plant of his em- ployer. The superintendent asked him what the matter was and the deceased said he was cold. He was examined and no mark or bruise was found on his body. He was said to have told one or two persons that he fell but there was no evidence as to the distance he fell, where he fell, or what the conse- quences of his fall were. He died a few days later and the insurance car- rier contended that his death was the result of alcoholism. His relatives were given an opportunity to have a reason- able adjournment for the purpose of making an investigation of the acci- dent but decided not to make the effort. The evidence showed that he was intox- icated at the time he was found and that he drank after he was taken to his room. The commission held that the absence of any mark or bruise on his body tended to negative the sup- position that he fell from any height such as would be sufficient to cause injuries resulting in death. The claim for compensation was denied. Butler v. Sheffield Farms, 1 St. Ind. Gomm. Bull. (No. 4, 1915) 11, 6 N. Y. St. Dep. Rep. (No. 32, p. 65, 1915). Reference to N. C. C. A. Intoxication as bar to recovery under compensation acts, 9 N. C. C. A. 245-263. 34 — References to N. C. O. A. Exclusiveness of remedy, 4 N. C. O. A. 11, 786. Abolition of common-law remedies, 5 MT. O. C. A. 401. Common-law remedies, constitutional 115 New York Appendix. 1197 fail to secure the payment 35 of compensation for his injured employees and their dependents as provided in section fifty of this chapter, an injured employee, or his legal representative 36 in case death results from principles underlying compulsory com- pensation act abrogating, 10 N. C. C. A. 36-42. Bight of action for injuries received outside of state as affected by work- men's compensation acts, 5 N. C. C. A. 814. Recovery at common law in compen- sation state for injury received in com- mon-law state, 5 N. C. C. A. 814. Parents' right of action for injury to minor employee, 7 N. C. C. A. 254. Wife's right of action where husband survives injury, 4 N. C. 0. A. 835. Loss of earnings by wife while nurs- ing injured husband, 4 N. C. C. A. 835. Action for death where relation of employer and employee does not exist, 4 N. C. C. A. 819. Special remedies, as affected by com- pensation acts, 7 N. 0. C. A. 965. Factory act, right of employee to bring action under where employer has elected not to accept provisions of com- pensation acts, 8 N. 0. C. A. 667, 668n; 5 N. C. C. A. 763. Mines act, whether compensation act repeals, 7 N. C. C. A. 966; 8 N. C. C. A. 668n. Death acts as affected by compensa- tion acts, 8 N. C. C. A. 665, 667n. Death act, compensation act preclud- ing action under as denial of equal pro- tection of laws, see Northern Pac. Ry. Co. v. Meese (IT. S. Sup.), 10 N. 0. C. A. 939. 35 — References to N. C. 0. A. Remedies of employee where neither employer nor employee has filed state- ment rejecting act, 5 N. C. 0. A. 763. Rejection of act by employer as re- viving common-law action, 8 N. C. 0. A. 650, 651. Election by employer not to accept as necessary, 5 N. C. C. A. 419. Compensation as recoverable in com- mon-law action, 8 N. C. C. A. 661-662. Noncompliance with statutory provi- sions for protection of employees as affecting employer's liability, 4 N. C. C. A. 919. Noncompliance with statute provid- ing for guarding of machinery, action under where employer has failed to come within provisions of compensa- tion act, 8 N. C. C. A. 668, 670. Burden of pleading and proving com- pliance by employer with requirements of acts, 5 N. C. C. A. 557. Pleading and proving rejection by employer, 7 N. C. C. A. 48. Pleading failure to safeguard ma- chinery, 4 N. C. C. A. 837. Pleading compensation act in com- mon-law action, necessity for, 8 N. C. C. A. 670. 36 — Term "legal representatives ' ' construed. — The employer failed to take out insurance required by the compensa- tion law. Compensation was awarded and the employer, who appealed, con- tended that the widow was not author- ized by section 11 of the act to make the election and prosecute the claim, and that it could only be done by the "legal representatives" of the de- ceased, that is, by the executor or ad- ministrator. Section 52 of the statute provides that the "failure to secure the payment of compensation shall have the effect of enabling the injured em- ployee or his dependents to maintain an action for damages in the courts, as prescribed by section 11 of this chap- ter." Section 11 of the statute pro- vides 'that: "If an employer fail to secure the payment of compensation for his injured employees and their depend- ents, * * * an injured employee, or his legal representative in case death results from the injury, may, at his ■option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on 1198 10 Negligence and Compensation Cases Annotated. 11 5 the injury, may, at his option, elect ST to claim compensation under this chapter, or to maintain an action 3S in the courts for damages on account aecount of such injury." In passing upon the employer's contention, the court said: "Upon an examination of the whole statute, in connection with the purposes of its enactment, I am convinced that the 'legal representa- tive' referred to in section 11 means the dependent and not the executor or administrator. * * * This 'legal representative' may elect either to pro- ceed under the compensation law before the commission, or to bring an action. By parity of reasoning it is not proba- ble, at least if election be made to pro- ceed under the compensation law, that first an executor or administrator must be appointed, with its attendant ex- pense. Such a construction would be contrary to the general scheme of the statute, and would tend to make a pro- ceeding more complex than would be a proceeding directly by the dependent himself. A dependent who was not a next of kin and not a creditor would have no standing in surrogate's court to compel the appointment of a 'legal representative,' as the term is sought to be interpreted by defendants. The ordinary action for negligence given to the personal representative of a de- ceased is brought for the benefit of next of kin. The action here authorized is brought for the benefit of certain dependents, and must be decided upon rules of law differing materially from those which govern the ordinary action for negligence by the personal repre- sentative. Again, this election to be made either to proceed under the com- pensation act or by separate action would more naturally be made by those directly interested than by any one representing the estate as a personal representative. It may be suggested that there might be difficulties in case some of the dependents might elect one course and some another. The answer to that suggestion would seem to rest in the provision of section 29, which provides in a certain case for the elec- tion by dependents, and provides: 'that such election shall be evidenced in such manner as the commission may by rule or regulation prescribe.' "So election under section 11 might be exercised 'in such manner as the commission may by rule or regulation prescribe.' " The award was set aside on other grounds. Dearborn v. Peugeot Auto Import Co., — App: Div. (N. Y.) — , 155 N. Y. Supp. 769 (1915). 37 — References to N. C. C. A. Employee electing afteF injury to accept act, 5 N. C. C. A. 742, 762. Acceptance by employee, effect, 3 N. C. C. A. 654. Election by employee not valid un- less employer has elected to accept, 5 N. C. C. A. 419. Employee's acceptance, provisions as to, 7 N. C. C. A. 49, 50. Presumption of election by employee when no notice of nonacceptance is filed, 9 N. 0. C. A. 49, 50. Presumption of acceptance from fail- ure to reject, 9 N. C. 0. A. 49. Presumption as to election in absence of evidence, 9 N. C. C. A, 48, 49. Unconditional acceptance of act, 9 N. C. C. A. 48. Compulsory provisions, when employ- ers subject to, 5 N. C. C. A. 742. 38 — References to N. C. C. A. Notice of election to enforce common- law remedy, 4 IT. C. C. A. 600. Action at law by employee where employer has rejected act, 5 N. C. C. A. 410. Common-law actions where employer has failed or refused to comply with the provisions of compensation acts, 8 N. C. C. A. 649, 670. Rejection by employee, provisions as to, 7 N. C. C. A. 50. Acceptance or rejection by employ- H7 New Yokk Appendix. 1199 of such injury ; and in such an action 39 it shall not be necessary to plead or prove freedom from contributory negligence 40 nor may the defendant plead as a defense that the injury was caused by the negli- gence of a fellow servant 41 nor that the employee assumed the risk 42 of his employment, nor that the injury was due to the contributory negligence of the employee. (Effective immediately.) U 6. Compensation not allowed for first two weeks. § 12. No compensation shall be allowed for the first fourteen days of disability, except the benefits provided for in section thirteen of this chapter. II 7. Treatment and care of injured employees. § 13. The employer shall promptly provide for an injured employee ees, effect on common-law action, 8 N. C. C. A." 651, 652. Election of employer to reject, 5 N. C. C. A. 410. Period for which rejection effective, 7 N. 0. C. A. 47. 39 — References to N. C. C. A. Abolition of defenses constitutional, 5 N. C. C. A. 401, 410. Common-law defenses, constitutional principles underlying compulsory com- pensation act abrogating, 10 N. CO. A. 36-42. Defenses abolished where employer has failed or refused to comply with provisions of compensation act, 8 N. C. C. A. 657, 661n; 5 N. C. C. A. 410. Employers to whom abolition of de- fenses applies, 5 N. C. C. A. 519. Instructions as to defenses where em- ployer has rejected act, 5 ST. C. C. A. 410. Increase of liability where employer elects not to accept act, 2 N. C. C. A. 828n. Degree of care required of employer electing not to accept, 4 N. C. C. A. 839n. Common-law defenses available where employer has failed or refused to accept compensation act, 8 N. C. C. A. 659-661. Acceptance of act by employee not prerequisite to abolition of common-law defense, 5 N. C. C. A. 419. 40 — References to N. C. C. A. Abrogation of defense of contribu- tory negligence as affecting constitu- tionality of act, 5 N. C. C. A. 871. Contributory negligence as reducing damages, 5 N. C. C. A. 410. Comparative negligence as defense, 4 N. C. C. A. 618. Contributory negligence, constitu- tionality of compensation act denying defense of, 10 N. C. C. A. 1015. 41 — References to N. C. C. A. Abrogation of defense of negligence of fellow-servant as affecting constitu- tionality of act, 5 N. C. C. A. 871. Negligence of fellow-employee, when not a defense, 4 N. C. C. A. 944n. F«llow-servant's negligence not a de- fense where employer has rejected act, 5 N. C. C. A. 410. 42 — References to N. C. C. A. Abrogation of defense of assumption of risk as affecting constitutionality of act, 5 N. C. C. A. 871; 10 N. C. C. A. 1015. Assumption of risk not a defense where employer has rejected, 5 N. O. C. A. 410. Assumption of risk not a defense as to employers not operating under act, 5 N. C. C. A. 419. Disobedience of orders by fellow- employees as risk of employment, 4 N. C. C. A. 682. 1200 10 Negligence and Compensation Cases Annotated. H 7 such medical, 43 surgical 44 or other attendance or treatment, 45 nurse 46 and hospital service, medicines, crutches and apparatus as may be re- quired or be requested 47 by the employee, during 48 sixty days after the injury. If the employer fail to provide the same, the injured employee may do so at the expense of the employer. 49 The employee shall not be entitled to recover any amount expended by him for such treatment or services unless he shall have requested the employer to furnish the same and the employer shall have refused or neglected to do so. All fees and other charges for such treatment and services shall be subject to regu- lation by the commission as provided in section twenty-four of this chapter, and shall be limited to such charges 50 as prevail in the same 43 — References to N. C. C. A. Prescribed medical treatment, effect of refusal of employee to follow, 10 N C. C. A. 185-201. Medical treatment, effect of refusal to accept, 10 N. C. O. A. 200. Medical treatment, when employee's refusal to follow unreasonable, 10 N. C. C. A. 189-193. Misconduct during medical treatment, effect, 10 N. C. C. A. 193-195. 44 — Operation, unreasonable conduct in not undergoing, 9 N. C. O. A. 1252, note 74. References to N. C. C. A. Operation, effect of refusal of injured employee to submit to, 10 N. C. O. A. 185-201. Submission to operation, compensa- tion conditioned on, 10 N. C. C. A. 198-200. Accepting truss in lieu of operation, effect on right subsequently to require operation, 10 N. C. C. A. 198. Benefit of operation doubtful, effect of failure to submit to, 10 N. C. C. A. 197-198. Major operation, effect of refusal to undergo when danger to life involved, 10 N. C. C. A. 195-197. Minor operation, when employee 's re- fusal to undergo unreasonable, 10 N. C. C. A. 187-189. References to N. C. C. A. Refusal to undergo operation or fol- low prescribed medical treatment as affecting compensation, 6 N. C. C. A. 675, 684; 4 N. C. C. A. 864. Refusal to undergo operation for her- nia as affecting right to compensation, 6 N. C. C. A. 403, 404. 45 — References to N. C. C. A. Purpose of provision that employer furnish medical aid, 4 N. C. C. A. 151. First aid, when employee may pro- vide, 4 N. C. C. A. 151. Medical aid, duty to furnish, 4 N. O. C. A. 149, 151n; 5 N. C. C. A. 688. Notice to employees of medical serv- ices, duty of employer, 5 N. O. C. A. 688. Opportunity to be afforded employer to furnish medical treatment, 4 N. C. C. A. 150, 151. 46 — Reference to N. C. O. A. Nurse hire, when proper to allow for, 4 N. C. C. A. 151, 152. 47 — References to N. C. C. A. Notice to employer of necessity of medical treatment, 4 N. C. C. A. 151. Necessity of request for medical aid, 4 N. O. C. A. 860n. 48 — Reference to N. C. C. A. Duration of allowance for nursing, 4 N. O. C. A. 152. 49 — References to N. C. C. A. Selection of nurse and physician by employee, 4 N. C. O. A. 149. Gratuitous nursing furnished by rela- tive or friends, employer not charged with, 4 N. C. C. A. 152. 50 — References to N. C. O. A. 118 New York Appendix. 1201 community for similar treatment of injured persons of a like standard of living. H 8. Weekly wages basis of compensation. § 14. Except as otherwise provided in this chapter, the average weekly- wages 51 of the injured employee at the time of the injury 52 shall be taken as the basis upon which to compute compensation or death benefits, and shall be determined as follows: 1. If the injured employee shall have worked in the employment in which he was working at the time of the accident, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed ; 2. If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in a similar employ- ment in the same or a neighboring place shall have earned in such employment during the days when so employed ; 3. If either of the foregoing methods of arriving at the annual average earnings of an injured employee cannot reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment in the same or neighboring locality, shall reasonably represent the Recovery for medical attendance, 5 N. C. C. A. 688. Amount allowable for medical and surgical expenses, 4 N. C. C. A. 150. Ascertainment of reasonableness of allowance for medical expenses, 4 N. C. C. A. 150. Burden of proving reasonableness of charges for medical treatment, 4 N. C. C. A. 149. Medical services, insurance carrier's liability for, where not offered until employee was in serious, condition and after another physician had taken charge, 3 N. C. C. A. 768. 51 — Determination of wages when employment seasonal, 9 N. C. 0. A. 1231-1232, note 40. References to N. C. C. A. ' Average weekly wages, ascertainment of, 3 N. C. C. A. 612, 636n. Days "laid off," whether to be con- sidered in computing average weekly wages, 6 N. C. C. A. 807, 81,7. 52 — References to N. O. C. A. Compensation as based on wages at time of accident, 9 N. C. C. A. 540. Compensation based on wages in sim- ilar employment at time of accident, 9 N. C. C. A. 541-542. Determination of wages where amount includes pay for assistant, or board, or lodging, etc., 9 N. C. C. A. 86-90. Statutory provisions as to computa- tion of average weekly wages or earn- ings, 9 N. C. C. A. 531, 540. 1202 10 Negligence and Compensation Cases Annotated. H 8 animal earning capacity of the injured employee in the employment in which he was working at the time of the accident ; 4. The average weekly wages of an employee shall be one-fifty-second part of his average annual earnings -, 5. If it be established that the injured employee was a minor when injured, and that under normal conditions his wages would be expected to increase, the fact may be considered in arriving at his average weekly wages. 03 53 — Provision for consideration of expected increase as affected by provi- sion that questions of dependency shall be determined as of time of accident. — The appellant contended against the consideration by the commission of a probable increase in the wages of the deceased ' minor employee and against an award based on such consideration. This contention was based on the last sentence of section 16. In disposing of this contention the court said: "The attempt of the appellant to invoke the last sentence of section 16 in support of its contention fails entirely, as we comprehend the statute. The sentence in question is as follows: 'All questions of dependency shall be determined as of the time of the accident.' ' ' This is simply a command to the commission, whenever it attempts to ascertain who are dependents of a de- ceased employee, to take into consid- eration the circumstance at the time of the accident. It relates in no manner to the right of the commission to con- sider the probable earning capacity of an injured employee who was a minor when hurt. The award should be af- firmed with costs." Kilberg v. Vitch, — App. Div. (N. Y.) — , 156 N. Y. Supp. 971 (1915). Probable increase of minor employee's weekly wages as basis of compensa- tion. — The deceased was a boy 16 years old. At the time of his death he was earning $5.50 per week. It appeared from the evidence and the commission found, that "as he progressed in his trade his wages at the end of two years would, under normal conditions, have increased to $12.00 per week, and upon arriving at his majority he would have earned in his trade from $12.00 to $18.00 per week." An award was made to a dependent mother and sister and the employer and the insurance com- pany appealed. In affirming the award the court said: "The appellant does not dispute the facts, but contends against the consideration by the com- mission of a probable increase in the wages of the deceased minor employee, and against an award based on such consideration. The commission has as- sumed that its power to make the award appealed from arises from the language of section 14 of the act. The relevant parts of the section read as follows: " 'Except as otherwise provided in this chapter, the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation or death benefits, and shall be determined as follows: * * * If it be estab- lished that the injured employee was a minor when injured, and that under normal conditions his wages would be expected to increase, the fact may be considered in arriving at his average weekly wages.' ' ' Arriving at his average weekly wages for what purpose? For the pur- pose of computing ' compensation or death benefits. ' This answer comes out of the first paragraph of section 14 itself. This is not the case of widely separated and apparently discordant sections of a statute, which the court is to attempt to harmonize. Here the language under consideration is all in 119 New York Appendix. 1203 1! 9. Schedule in case of disability. § 15. The following schedule 54 of compensation is hereby established: 1. Total permanent disability. In case of total 5B disability adjudged to be permanent sixty-six and two-thirds per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability. Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof shall, in the absence of conclusive proof to the contrary, constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts. one section and treats of one subject. Stripped of matters not germane to the subject in hand, we find that section 14 provides that the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation or death benefits, and if the injured employee was a minor when injured, and under normal conditions his wages would be expected to increase, that fact may be considered in arriving at his average weekly wages. Therefore it follows that the commission acted in accordance with the exact letter, as well as the spirit, of the law. * * * The award should be affirmed with costs. '„' Kilberg v. Vitch, — App. Div. (N. Y.") — , 156 K. Y. Supp. 971 (1915). Minor injured — Expected increase as basis of award. — At a previous hearing of this case the claimant was awarded compensation at the rate of $5.00 per week, based on an average weekly wage of $8.00. He was learning a trade in which men earn from $20.00 to $30.00 per week when fully experienced, and upon arriving at his majority he would have earned in his trade above ten dol- lars per week. The claimant made appli- cation for a modification of the former award on the ground that it had not been determined on the proper basis. The commission held that his average weekly wage at the time of the acci- dent as determined under section 14 of the workmen's compensation law, tak- ing into consideration that under nor- mal circumstances his wages would be expected to increase, was the sum of $9.61. The former award was amended to an award of compensation at the rate of $6.41 per week. Itzikowitz v. Lanker, 5 N. Y. St. Dep. Eep. 398 (1915). While the claimant was working as a fourth hand on a paper machine for his employer, he suffered an injury which resulted in the loss of both hands. He was eighteen years of age, and, under normal conditions, his wages ' would be expected to increase, and, in consideration of this fact, the commis- sion fixed his average daily wage at $2.55 and his average weekly wage at $14.42, for the purpose of compensa- tion. On this basis he was awarded compensation at the rate of $9.61 weekly, during his life, for the total permanent disability occasioned by the loss of both hands. Oarkey v. Island Paper Co., 6 N. Y. St. -Dep. Eep. (No. 32, p. 52, 1915). 54 — Eeferences to N. 0. O. A. Schedule as fixing amount of award, 4 N. C. C. A. 588. Discretion of court as to amount, 5 N. C. C. A. 590. Injuries not specially provided for, basis of allowance, 4 N. C. C. A. 590. Compensation for disability not scheduled, 9 N. C. O. A. 342, 349. 55 — Eeference to N. C. C. A. "Total disability" defined, 3 N. C. C. A. 649n. 1204 10 Negligence and Compensation Cases Annotated. f 9 2. Temporary total disability. In case of temporary total disability, sixty-six and two-thirds per centum of the average weekly wages shall be paid to the employee during the continuance thereof, but not in excess of three thousand five hundred dollars, except as otherwise provided in this chapter. 3. Permanent partial disability. In case of disability partial 50 in character but permanent in quality the compensation shall be sixty-six and two-thirds per centum of the average weekly wages and shall be paid to the employee for the period named in the schedule as follows : Thumb. For the loss of a thumb, sixty weeks. First finger. For the loss of a first finger, 57 commonly called index finger, forty-six weeks. Second finger. For the loss of a second finger, 58 thirty weeks. Third finger. For the loss of a third finger, twenty-five weeks. Fourth finger. For the loss of a fourth finger, commonly called the little finger, fifteen weeks. Phalange of thumb or finger. The loss of the first phalange of the thumb or finger shall be considered to be equal to the loss of one-half of such thumb or finger, and compensation shall be one-half of the amount above specified. The loss of more than one phalange shall be con- sidered as the loss of the entire thumb or finger ; 59 provided, however, 56 — Test of Incapacity, taking em- ployee back at old wage as, 9 N. C. C. A. 1234, note 44. References to N. C. C. A. Permanent partial disability and tem- porary disability, award for, 5 N. C. C. A. 870. Special kinds of work, whether com- pensation allowed for inability to per- form, 4 N. C. C. A. 860n. Inability to secure work as "inca- pacity for work, " 5 N. C. 0. A. 735. 57 — Loss of distal phalanx and over one-half of second phalanx, compensa- tion for, 9 N. C. C. A. 1234, note 45. 58 — Loss of two phalanges of second finger, compensation for, 9 N. C. C. A. 1234, note 46. 59 — Award as for total loss of finger where second phalanx is removed. — The amputation, made necessary by the injury, resulted in the taking off of a portion of the second phalanx of the in- dex finger. An award was made as for the total loss of the index finger of the left hand and the defendant appealed. The court said: ' ' Unless this court is to withdraw from the deliberate reason- ing in Matter of Petrie, 165 App. Div. (N. Y.) 561, 151 N. Y. Supp. 307, where we attempted to reach the true con- struction of the statute, the determina- tion of the commission must be approved in this case. We are more willing to reach this conclusion in view of the fact that any other construction would require a holding that this injury comes within 'other cases,' as defined in the statute, and might result, as was claimed in Matter of Feinman, 155 N. Y. Supp. 909, in a continuing lia- bility largely in excess of that pro- vided by the statute for the entire loss of a finger. We think the appellant would not care to have the rule ex- tended beyond the limitations which are being worked out, and it is not the policy of the law to involve claimants and insurance carriers in uncertain lia- if 9 New York Appendix. 1205 that in no ease shall the amount received for more than one finger 60 exceed the amount provided in this schedule for the loss of a hand. bilities. " Award affirmed. Fortino v. Merchants' Dispatch, etc., Co., — App. Div. (N. Y.) — , 156 N. T. Supp. 262 (1915). 60 — Whether award for injury to finger may be greater than specific allowance for loss of finger. — The claim- ant was employed as a sewing machine operator in the manufacture of under- clothing. "While thus employed, on or about September 11, 1914, she was acci- dentally injured by a needle puncturing her third finger, followed by blood poi- soning, which necessitated the amputa- tion of the third finger of her left hand at the first phalanx. This appears to have been followed by cellulitis of the joints, so that the third finger became practically useless. The commission appears to have had the claim before it on several occasions, making allow- ances and holding the same open for further consideration, with the result that the claimant had been paid for the injuries to this finger the statutory allowance of 25 weeks, and at the last recorded action of the commission, taken April 26, 1915, the claimant was awarded $10.26, and the claim depart- ment was instructed to hold the case in abeyance until the appeal could be decided by the courts. The theory of the claimant, which seems to have been shared by the commission, was that, the finger not having been actually severed above the first phalanx, the claimant had not lost the third finger, but that she was to be considered as coming within the provisions of the subdivision of section 15 of the workmen 's compen- sation law which provides that: "In all other cases in this class of disability, the compensation shall be sixty-six and two-thirds per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise, pay- able during the continuance of such partial disability, but subject to the reconsideration of the degree of such impairment by the commission on its own motion or upon application of any party in interest. ' ' In reversing the award the court said: "The result of this contention, if acquiesced in, would be that where a person has lost the entire use of a finger, only a portion of which is ampu- tated, he would be entitled to a larger compensation (or might be) than one who has suffered the absolute amputa- tion of the entire finger. * * * The argument is that, the legislature having provided for specific compensation 'for the loss of a third finger' and having specially provided that the permanent loss of the use of a hand, arm, foot, leg or eye, the statute is to be construed so as to exclude a ease like the present, where a portion of the finger has been amputated and the remainder of the finger has become useless. We think this is not the true construction of the statute; that 'loss of a third finger' may be just as real, where it is ren- dered wholly useless, as though it had been physically taken away; that the law does not contemplate payment for a ,third finger in excess of the sum which is provided for the loss of an entire finger under any circumstances, where the injury does not extend be- yond the finger. * * * The courts of this state, in construing policies of insurance, have not given such a nar- row construction to the word 'loss,' and we are of the opinion that the con- struction of the claimant cannot be sustained without discrediting the sys- tem, for it opens the way to fraud. * * * In the case at bar a rea- sonably liberal construction gives the claimant the benefit of a loss of a third finger, where she still retains a con- siderable portion" of it, which may be of more or less use to her; but to extend 1206 10 Negligence and Compensation Cases Annotated. H 9 Great toe. For the loss of a great toe, thirty-eight weeks. Other toes. For the loss of one of the toes other than the great toe, sixteen weeks. Phalange of toe. The loss of the first phalange of any toe shall he considered to be equal to the loss of one-half of said toe, and the com- pensation shall be one-half of the amount specified. The loss of more than one phalange shall be considered as the loss of the entire toe. Hand. The loss of a hand, 61 two hundred and forty-four weeks. Arm. For the loss of an arm, 62 three hundred and twelve weeks. this construction to enable her to get more for this useless finger than she would be entitled to if the judgment of the surgeon had called for taking away a trifle more of the finger is absurd, and opens the way to fraud and litigation, where it was the purpose of the statute to eliminate both." Feinman v. Albert Mfg. Co., — App. Div. (N. Y.) — , 155 N. Y. Supp. 909 (1915), rev'g 9 N. C. C. A. 1240. Finger Injuries, compensation for, 9 N. C. C. A. 1235, note 47. Loss of first phalanx of finger, com- pensation for, 9 N. 0. C. A. 1235-1236, note 47. References to N. C. C. A. Injury to fingers, compensation, 3 N. C. C. A. 585, 587, 684, 693; 5 N. O. C. A. 611; 8 N. C. C. A. 355, 362n. Loss of fingers and temporary total incapacity, what awards proper, 5 N. C. C. A. 870. Separate awards where several fin- gers injured, 4 N. C. O. A. 674; 5 N. 0. C. A. 870. Loss of part of phalanx, how con- sidered, 8 N. C. C. A. 353, 354n. Phalanx of finger permanently in- jured, award of additional compensa- tion, 5 N. C. C. A. 611. Infection following injury to fingers, 8 N. C. C. A. 366, 368. Finger tips, award for injury to, 5 N. C. C. A. 858. Injury to fingers not requiring ampu- tation, and compensation therefor, 8 N. C. C. A. 362, 368n. Loss of all fingers as total disability of hand, 8 N. C. C. A. 478n. Partial loss of fingers as total disa- bility of hand, 8 N. C. C. A. 479n. When injury to fingers impairing use of hand will not be considered loss of use of hand, 8 N. C. C. A. 354n. 61 — Loss of fingers resulting in loss of use of hand.— On May 6, 1915, while the claimant was employed as a press operator by a manufacturer of fancy goods, his right hand was caught be- tween the die and punch of the press, necessitating the amputation of sev- eral fingers of the right hand, as a result of which, he lost the use of his right hand. An award of compensa- tion, equivalent to the loss of a hand, was made. Grammici v. Zinn, 5 N. Y. St. Dep. Rep. 400 (1915). Loss of fingers as loss of hand, 9 N. C. C. A. 1236-1237, note 48. References to N. C. O. A. Hand "incapable of use" though not severed, as warranting additional com- pensation, 8 N. O. C. A. 484n. Amputation following infection of injured hand, compensation for, 8 N. C. C. A. -483. Infection of injured hand after in- jury, compensation for permanent in- jury and temporary disability, 5 N. C. C. A. 869. Injury to hand and arm, method of computing compensation, 8 N. C. C. A. 478. 62 — Reference to N. C. C. A. Motion of arm partially injured, com- puting compensation, 4 N. C. C. A. 586. 519 New Yokk Appendix. 1207 Foot. For the loss of a foot, 63 two hundred and five weeks. Leg. For the loss of a leg, 64 two hundred and eighty-eight weeks. Eye. For the loss of an eye, 65 one hundred and twenty-eight weeks. 63 — Eeference to N. C. C. A. Compensation for loss of or injury to foot, 9 N. C. C. A. 773-792. 64 — References to N. C. C. A. Permanent incapacity of legs, caused by paralysis resulting from injury to spine, 5 N. C. C. A. 635. Ankle burned, basis of compensation, 5 N. C. C. A. 416. Ankle permanently injured, basis of compensation,, 4 N. C. C. A. 734. , 65 — Sight of eye lost as result of blow. — The claimant was employed as a longshoreman by a corporation en- gaged in the operation of steamships as a common carrier in foreign com- merce exclusively. While engaged in unloading a vessel, sending up slings on a fall, the fall swung and struck him in his right eye, causing an abrasion which became infected and developed into a spreading ulcer by reason of which injury he lost the use of his right eye. His average weekly wage was $19.04. An award was made at the rate of $12.69 per week for 128 weeks. Benedict v. International Mer- cantile Marine Co., 5 N. T. St. Dep. Rep. 411 (1915). The claimant was employed as a sewer in the upholstery workroom of her employer's department store. While she was going from one room to another, a board standing against a column, in some unknown way. fell against her, striking her on the right cheek, severely lacerating her face and knocking out one of the teeth in the upper jaw, and so severely injured the right eye that the vision of the same was reduced to one-tenth of normal. The average weekly wage of the claim- ant was $9.62. Award was made against the insurer at the rate of $6.41 for a period of 128 weeks for the loss of the use of the right eye. McManus 10 N. C. C. A. N. Y. App.— 5 v. Lord & Taylor, 6 N. Y. St. Dep. Eep. (No. 35, p. 62, 1915). Stableman kicked in face— Eye de- stroyed. — -The claimant was employed as a stableman, harness cleaner, and night watchman. His employer was engaged in the business of operating a livery and boarding stable in the City of New York. In connection with his work above mentioned, the claimant was required to assist in unhitching hoTses. His work was during the night time, beginning at 6 o'clock p. m. On October 10, 1915, while the claimant was hanging up harness on a stall post, the horse which was in the stall, kicked him on the right side of the face, so badly injuring his right eye that the same had to be removed. The claimant worked for his employer seven days a week. An award was made at the rate of $8.33 weekly for a period of 128 weeks. Budewicz v. Wendell & Evans Co., 6 N. Y. St. Dep. Eep. (No. 36, p. 97, 1915). Eye lost, compensation for, 9 N. C. C. A. 1238, note 52. Eye injury, deduction of award made for temporary partial disability subse- quently developing into permanent par- tial disability, 9 N. C. O. A. 1238-1239, note 52. References to N. C. C, A. Eye lost, extent of impairment of earning capacity, 5 N. C. -C. A. 822. Eye injuries, compensation for, 6 N. C. C. A. 880, 889. Eye injury, extent and continuation of disability from, 6 N. C. C. ( A. 886, 895. Pre-existing disease in injured eye as affecting right to compensation, 6 N. C. C. A. 895, 899. Uninjured eye affected by other 1208 10 Negligence and Compensation Cases Annotated. H 9 Loss of use. Permanent loss of the use of a hand, arm, foot, leg or eye shall be considered as the equivalent of the loss of such hand, arm, foot, leg or eye. Amputations. Amputation between the elbow and the wrist shall be considered as the equivalent of the loss of a hand. Amputation between the knee and the ankle shall be considered as the equivalent of the loss of a foot. Amputation at or above the elbow shall be considered as the loss of an arm. Amputation at or above the knee shall be considered as the loss of the leg. The compensation for the foregoing specific injuries shall be in lieu of all other compensation, except the benefits provided in section thir- teen of this chapter. Other cases. In all other cases 66 in this class of disability, the com- pensation shall be sixty-six and two-thirds per centum of the difference between his average weekly wages and his wage-earning capacity there- after in the same employment or otherwise, payable during the con- tinuance of such partial disability, but subject to reconsideration of the degree of such impairment by the commission on its own motion or upon application of any party in interest. 4. Temporary partial disability. In case of temporary partial dis- ability, 87 except the particular cases mentioned in subdivision three causes, whether compensation allowed, 6 N. 0. 0. A. 899. Blind eye, injury necessitating re- moval of, whether incapacity for work caused where removal prevents capable employee from obtaining work, 5 K. 0. 0. A. 862. 66 — Fingers crushed necessitating amputation.— On July 7, 1915, while the claimant was employed by a railroad company as a laborer, unloading rails, one of the rails slipped and crushed one of his fingers necessitating the re- moval of a part thereof and also injur- ing another finger of the same hand. He was disabled from work for a period of ten weeks. An award was made at the rate of two-thirds of his average weekly wage for a period of eight weeks for the injuries to the one finger and for the further period of twenty- three weeks for the loss of part of the other finger. Sorgi v. Penn. E. R. Co., 5 N. Y. St. Dep. Rep. 408 (1915). Finger injury followed by infection and amputation, compensation for, 9 N. C. C. A. 1239-1240, note 53. Laceration of middle finger, compen- sation for, 9 N. 0. C. A. 1240, note 53. Partial ankylosis of joint causing , deformity of finger, compensation for, 9 N. 0. C. A. 1240, note 53. 67 — Finger crushed — Infection fol- lowing. — The claimant was employed as a longshoreman by the Pennsylvania Railroad Company. On April 25, 1915, while he was engaged in unloading lumber from a barge for his employer, the hook he was using to swing the lumber slipped and one of the fingers of his left hand was struck by a joist of lumber and crushed causing infec- tion by reason of which he was dis- abled from working until June 12, 1915. His average weekly wage was $17.31. An award was made at the rate of $11.54 weekly for four and two-thirds weeks from May 11th to June 12, 1915. Mastermaker v. Pennsylvania R. Co., 5 N. Y. St. Dep. Rep. 370 (1915). fl9 New Yoek Appendix. 1209 of this section, an injured employee shall receive sixty-six and two-thirds per centum of the difference between his average weekly wages and his wage earning capacity thereafter in the same employment or otherwise during the continuance of such partial disability, but not in excess of three thousand five hundred dollars, except as otherwise provided in this chapter. Finger injured by pin puncture — In- fection following. — The claimant was employed by a cloak and suit manufac- turer and on August 5, 1914, while try- ing on an unfinished garment a pin in the sleeve of the garment punctured the third finger of her right hand. She worked until August 8, 1914, when she quit, telling her employer of the accident and that she was suffering severe pain and would have to go home. The finger became infected and the infection ex- tended to her left wrist and she was in- capacitated from August 8, 1914, to August 4, 1915. Her average weekly wage was $17.31. An award was here- tofore made at the rate of $11.54 for 25 weeks, and upon the above showing it was extended to cover her entire disabil- ity, the commission holding that the failure to give the employer written notice of the injury was excused. Bloom- field v. November, 5 N. Y. St. Dep. Rep. 385 (1915). Thumb crushed — Loss of nail. — The claimant was employed as a laborer by a railroad corporation engaged in both interstate and intrastate commerce. While the claimant was working in the yards of his employer at Rochester, N. Y., loading rails on a truck, one ef the rails accidentally slipped and caught the thumb of his right hand between that rail and another, fractur- ing the bone and causing a loss of the nail of the thumb, by reason of which injuries he was disabled from work. His average weekly wage was $8.65. An award was made at the rate of $5.75 per week for a period of 7 weeks. Hook v. Lehigh Valley R. Co., 5 N. Y. St. Dep. Rep. 410 (1915). Foot lacerated. — The claimant was employed as a freight handler and while helping to unload a car containing an interstate shipment, a barrel fell on his left foot, causing a deep laceration, disabling him from August 2, 1915, the date of the accident, to and continuing at the time . Of the hearing. Compen- sation was awarded at the rate of $7.31 weekly for a period of two weeks to August 30, 1915, two-thirds of his av- erage weekly wage, and the claim con- tinued. Blui v. Lehigh Valley R. Co., 5 N. Y. St. Dep. Rep. 407 (1915). Eye injured — Compensation where earning capacity not reduced. — The claimant was employed by the Bradley Contracting Company as a blacksmith's helper and while working on a railroad subway in the City of New York, a piece of steel flew off a punch which he was hammering with a sledge and struck him in the right eye. After- wards he developed a cataract caused by the injury to his eye, which was removed. A subsequent examination showed that with the aid of glasses his vision was 10 per cent, better than in the other eye, both eyes being scarred from childhood. The physician did not believe the claimant would be able to work as a blacksmith helper because the two eyes did not focus upon an object sufficiently to do that work. The evidence showed that as blacksmith's helper his average weekly wage was $11.74 and that "since recovering from his injury he had been employed for about two months as hat cleaner at $14.00 per week and that his injury would not prevent him from following this vocation. The commission said that inasmuch as the vocation of black- smith's helper was not a vocation that 1210 10 Negligence and Compensation Cases Annotated. H 9 5. Limitation. The compensation payment under subdivisions one, two and four, and under subdivision three, except in case of the loss of a hand, arm, foot, leg or eye, shall not exceed fifteen dollars per week nor be less than five dollars per week ; the compensation payment under subdivision three in case of the loss of a hand, arm, foot, leg or eye, shall not exceed twenty dollars per week nor be less than five dollars a required much time or talent to acquire, he could without loss take up some other vocation that was as remunerative as that of blacksmith helper. He had been awarded compensation of 53 2/7 weeks at the rate of $7.69, and the commission awarded him the further compensation of 23 weeks impaired earnings at the rate of $7.69 weekly. Saccoccio v. Bradley Contracting Com- pany, 1 St. Ind. Comm. Bull. (No. 5, 1916) 11, 6 N. Y. St. Dep. Rep. (No. 36, p. 99, 1916). Lacerated forehead becoming In- fected. — The claimant was employed as a digger in the subway construction Which was being carried on by his em- ployer. On November 2, 1915, while the claimant was working down in the cut of the subway, he was struck on the head by a beam of wood, which fell from above. The accident caused a lacerated wound on the forehead, which became infected. By reason of this injury the claimant was disabled to December 28, 1915, and on that date was still disabled. His average weekly wage was $17.31. Compensation was awarded at the rate of $5.77 weekly and claim continued for further hear- ing. Petcheck v. Degnon Contracting Co., 6 N. Y. St. Dep. Eep. (No. 35, p. 63, 1915). Hernia caused by strain — Compensa- tion. — The claimant was employed as a stevedore by the subscriber whose place of business was in the City of New York. Men were employed to handle cargoes wherever he had a con- tract to unload vessels in the Harbor of New York. On August 19, 1915, the employer had a contract for the unloading of a vessel at Pier 6, Jersey City, New Jersey. He sent the claim- ant over to the ship, with other men, to do the unloading. While the claim- ant was pushing a truck, containing freight to be put into a railroad car, he slipped and strained himself severely in the groin. The accident resulted in a double inguinal hernia, by reason of which injury he was disabled for a period of 12 weeks. He had been in the employ of the said employer for five years. His average weekly wage was $19.04. Compensation was awarded at the rate of $12.69 weekly, for a period of ten weeks. Nani v. Clark & Son, 6 N. Y. St. Dep. Rep. (No. 35, p. 59, 1915). , Wrist broken, compensation for, 9 N. C. C. A. 1240, note 54. Injury to great toe, compensation for, 9 N. C. C. A. 1241, note 54. Contusion of leg, compensation for, 9 N. C. C. A. 1241, note 54. Laceration of leg and injury to bone thereof, compensation for, 9 N. C. C. A. 1241-1242, note 54. Corneal ulcer caused by sandpaper striking eye, award for, 9 N. C. C. A. 1242, note 54. Foot crushed, compensation for, 9 N. C. C. A. 1242, note 54, and 9 N. C. C. A. 1245, note 54. Ribs injured, compensation for, 9 N. 0. C. A. 1243, note 54. Inflammation of eye, compensation for, 9 N. C. C. A. 1243, note 54. Rupture of muscle and injury to spine, compensation for, 9 N. C. C. A. 1243-1244, note 54. Internal hemorrhage caused by blow in abdomen, compensation for, 9 N. C. C. A. 1244, note 54. <19 New York Appendix. 1211 week; provided, however, that if the employee's wages at the time of injury are less than five dollars per week he shall receive his full weekly wages. 6. [As amended, Laws 1915, c. 615.] Previous disability. The fact that an employee has suffered previous 68 disability or received compensa- tion therefor shall not preclude him from compensation for a later injury nor preclude compensation for death resulting therefrom; but in deter- mining compensation for the later injury or death his average weekly wages shall be such sum as will reasonably represent his earning capacity at the time of the later injury, provided, however, that an employee Foot and toes bruised, compensation for, 9 N. C. C. A. 1245, note' 54. Fracture of arm, compensation for, 9 N. C. C. A. 1244, note 54. Fracture of collar bone, compensation for, 9 N. C. C. A. 1243, note 54. Leg fractured and ankle injured, compensation for, 9 N. C. C. A. 1242, note 54. Fracture of right leg, compensation for, 9' N. C. C. A. 1241, note 54. Fracture of hip, compensation for, 9 N. C. C. A. 1244-1245, note 54. Fracture of foot, compensation for, 9 N. C. C. A. 1243, note 54. Fracture of bones of hand, compen- sation for, 9 N. C. C. A. 1245, note 54. Elbow fractured, compensation for, 9 N. 0. C. A. 1246, note 54. Elbow and leg bruised, compensation for, 9 N. C. C. A. 1246, note 54. References to N. C. 0. A. Injuries not specifically provided for, basis of allowance, 4 N. C. C. A. 590. Hernia or varicocele, award where compensation granted for, 6 N. C. C. A. 405. Eye injured by chip, extent of im- pairment of capacity, 5 N. C. C. A. 822, 824. Disfigurement of hand, compensation for, 8 N. C. C. A. 352. Deformity of hand resulting from in- jury—award, 8 N. C. O. A. 478n. Temporary cessation of work, whether incapacity, 7 N. C. C. A. 906. Stipulation as to cessation of work* on account of disability, effect of, 7 N. C. C. A. 800. Change in agreed period of incapac- ity, effect of, 7 N. C. 0. A. 804. Disfigurement as ground for award of compensation, 5 N. C. C. A. 858. Scar on head as disfigurement, 5 N. C. O. A. 561. Breaking of tooth as disfigurement, 5 N. 0. C. A. 859. Teeth knocked out, disfigurement, 5 N. C. 0. A. 860. Sense of feeling in finger tips, de- struction as disfigurement, 5 N. C. C. A. 859. Shortening of leg, extent of impair- ment of capacity, 5 N. C. C. A. 835. 68 — Sight of driver injured disinfect- ing stable, prior loss of other eye, 9 N. C. C. A. 1246-1247, note 55. References to N. C. C. A- Eye lost prior to employment as af- fecting award for loss of other eye, 8 N. C. C. A. 1052, 1054, 1055n. Loss of hand prior to employment as affecting award for loss of other hand, 8 N. C. C. A. 1052, 1055n. Prior injury to hand as affecting award where total disability results, 8 N. C. C. A. 480n. Wrist, prior fracture of as affecting award for subsequent injury thereto, 8 N. C. C. A. 1055n. Prior fracture of leg as affecting award for subsequent fracture, 8 N. C. C. A. 1056n. 1212 10 Negligence and Compensation Cases Annotated. H 9 who is suffering from a previous disability shall not receive compensation for a later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with the previous disability. (Effective immediately.) 1110. Death benefits. § 16. [As amended, Laws 1914, c. 316.] If the injury causes death, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit 69 of the persons 70 following: 69 — References to N. C. 0. A. Dependent denned, 3 N. C. 0. A. 695, 703; 4 N. C. C. A. 594. Test of dependency, 9 N. C. C. A. 579-580. Dependents within workmen's com- pensation acts, 9 N. C. C. A 579, 597. Dependents and dependency under workmen's compensation acts, 6 N. C. C. A. 241, 287. Actual dependency, proof of, 3 N. C. C. A. 590, 593; 5 N. C. C. A. 613. Applicant a public charge as affect- ing dependency, 6 N. C. C. A. 268, 269. Insane person under confinement as dependent, 6 N. 0. C. A. 269. Reformatory inmate as dependent, 6 N. C. 0. A. 269. Inmate of workhouse as dependent, 6 N. C. C. A. 268, 269. Capacity for self-support as affecting dependency, 6 N. C. C. A. 274. Dependency on more than one, 6 N. C. C. A. 267, 268. Possession of other means of support as affecting dependency, 6 N. C. C. A. 269, 275. Time for ascertainment of depend- ency, 6 N. C. C. A. 265-267. Date of death, ascertainment of de- pendency as of, 6 N. C. C. A. 265 t 266. Date of injury, ascertainment of de- pendency as of, 6 N. C. 0. A. 266, 267. Duration of dependency, 3 N. C. 0. A. 599; 5 N. C. C. A. 615; 6 N. C. C. A. 285, 286. Conclusive presumption of depend- ency, statutory provisions as to, 6 N. C. C. A. 276, 282. Evidence of dependency, 9 N. C. C. A. 582, 583. Evidence of partial dependency, 9 N. C. C. A. 583-584. Burial expenses, not required to be paid to dependents receiving compen- sation, 5 N. C. C. A. 529. Sufficiency of evidence of depend- ency, 5 N. C. C. A. 858. Question of law or fact, dependency as, 6 N. C. C. A. 276, 285. Extent of dependency as question of fact, 6 N. C. C. A. 285. Right of dependents to compensation as 1 affected by death caused by act of third person, 9 N. C. C. A. 596, 597. Dependency as question of law or fact, 9 N. C. C. A. 596-597. Support defined, 3 N. C. C. A. 695, 703n. Intermittent contributions, depend- ency as affected by, 6 N. 0. C. A. 275, 276. Contribution to accumulate fund as contribution to dependency, 6 N. C. C. A. 273, 274. Money contributed but not received as affecting dependency, 6 N. C. C. A. 268. Liability of other persons for appli- cant's support as affecting dependency, 6 N. C. C. A. 275. 70 — References to N. C. C. A. Division of payments between de- pendents, 4 N. C. C. A. 508. Division of payments between mother and daughter, 4 N. C. C. A. 523. Child of former marriage and widow, mo New York Appendix. 1213 1. Reasonable funeral expenses, 71 not exceeding one hundred dollars; 2. If there be a surviving wife 72 (or dependent husband) and no division of payments between, 4 N. C. C. A. 508. Insurer's right to question division of compensation, 4 N. C. C. A. 552. 71 — References to N. C. C. A. Liability for burial expenses under compensation acts, 5 N. C. C. A. 529. Burial expenses, not required to be paid to dependents, 5 N. C. C. A. 529. 72 — Dependency — Illegality of mar- riage affecting right to compensation. — On February 19, 1914, the claimant landed in New York from Italy having come for the purpose of becoming the wife of one Laurenzi, who met her and immediately took her to a church where a marriage ceremony was performed. The next morning the claimant learned that Laurenzi had been married on March 10, 1907, to another woman from whom he had not been divorced, and the claimant thereupon immediately left him. Some months' later the claimant met Chieehetti, the deceased, and went with him to the city hall where a mar- riage license was procured, but no cere- monial marriage was celebrated. Al- though the claimant knew that this was not a valid marriage according to the canons of the Eoman Catholic church, to which they belonged, she nevertheless believed it to be a legal marriage according to the laws of New York. She, however, knew that a valid marriage according to the church can- ons could not be performed until she had procured an annulment of her mar- riage to Laurenzi. In passing upon the question whether the claimant was the widow of Chieehetti, the deceased, the commission said that a common law marriage could be contracted in the State of New York, and further said: "There is probably a presumption, al- though not a very strong one, that the first wife of Laurenzi, whom he married in 1907, was living in 1914 when he went through the form of marriage with the claimant, but there is, I think, a still stronger presumption to the con- trary and that grows out of the fact that Laurenzi, if he had another wife living at the time he married the claim- ant, was guilty of bigamy and I under- stand there is a very strong presumption both against the proposition that a man will commit a felony and also in favor of the proposition that a ceremonial marriage such as that which took place between Laurenzi and the claimant' is a valid legaf marriage. In my opinion the facts disclosed and the presumption which the law raises, Laurenzi and the claimant were man and wife when the claimant and Chieehetti procured their marriage license. In my opinion she has not shown that she was the legal wife of the deceased and she cannot now have compensation on the theory that she is his widow." Salvadori v. Interborough Eapid Transit Co., 1 St. Ind. Comm. Bull. (No. 2, 1915) 10, 5 N. Y. St. Dep, Eep. 438 (1915). References to N. O. C. A. Wife as dependent, 6 N. C. C. A.,247, 265. Husband and wife "living togeth- er," 5 N. C. C. A. 615. Wife living apart from husband as dependent, 9 N. C. C. A. 585, 588. Deserted wife not a dependent, 4 N. C. C. A. 781; 5 N. O. C. A. 615. Wife living apart ascertaining ex- tent of dependency of, 5 N. C. C. A. 694. Living apart from husband and father, dependency as affected, 4 N. C. C. A. 559; 6 N. C. C. A. 248, 253. Dependency of wife living apart from husband for justifiable cause, 9 N. C. C. A. 586, 587. Total dependency of wife living abroad, 5 N. 0. 0. A. 615. Wife living in foreign country as dependent, 3 N. C. 0. A. 670n: 1214 10 Negligence and Compensation Cases Annotated. U 10 child of the deaceased [deceased] under the age of eighteen years, to such wife (or dependent husband) thirty per centum of the average wages of the deceased during widowhood (or dependent widowhood) with two years' compensation in one sum, upon remarriage; and if there be sur- viving 73 child or children of the deceased under the age of eighteen years, the additional amount of ten per centum of such wages for each such child until the age of eighteen years; in case of the subsequent death T4 of such surviving wife (or dependent husband) any surviving child of the deceased employee, at the time under eighteen years of age, shall have his compensation increased to fifteen per centum of such wages, and the same shall be payable until he shall reach the age of eighteen years; provided that the total amount payable shall in no case exceed sixty-six and two-thirds per centum of such wages. 3. If there be surviving child or children 75 of the deceased under the age of eighteen years, but no surviving wife (or dependent husband) then for the support of each such chihi until of the age of eighteen years, fifteen per centum of the wages of the deceased, provided that the aggre- gate shall in no case exceed sixty-six and two-thirds per centum of such wages. 4. If the amount payable to surviving wife (or dependent husband) and to children under the age of eighteen years shall be less in the aggregate than sixty-six and two-thirds per centum of the average wages of the deceased, then for the support of grandchildren or Common-law wife as dependent, 6 N. C. C. A. 253, 254. Bigamous marriage, dependent in case of, 6 N. C. C. A. 254. Woman living illicitly with man as dependent, 6 N. C. C. A. 254, 255. Deduction of compensation paid em- ployee, from compensation allowed widow, 4 N. C. C. A. 546. 73— References to N. C. C. A. Presumption as to dependency of minor where dependent mother surviv- ing, 4 N. C. C. A. 522. Dependency of son in custody of di- vorced wife and supported by her, 9 N. C. C. A. 5S8. 74 — References to N. 0. C. A. Death of dependent, as affecting right, 6 N. C. C. A. 287. Eight of dependents to compensation as affected by death caused by act of third person, 9 N". C. C. A. 596, 597. 75 — References to N. C. C. A. Children as dependents, 5 N. C. C. A 614; 6 N. C. C. A. 255, 263. Child by former marriage as depend ent, 4 N. C. C. A. 508; 6 N. C. C. A 262, 263. Capability of daughter of self-sup port as affecting dependency, 4 N. C C. A. 554; 6 N. C. C. A. 274, 275. Illegitimate child as dependent, 6 N. C. C. A. 261, 262. Posthumous child as dependent, 6 N. C. C. A. 260, 261. Adopted child as dependent, 6 N. C. C. A. 265.' Child not legally adopted as depend- ent, 9 N. C. C. A. 590. Parents living apart as affecting de- pendency of child, 6 N. C. C. A. 256, 260. Wife and child living apart from em- ployee, dependency, 5 N. C. C. A. 615; 6 N. C. C. A. 256, 260. mo New Yobk Appendix. 1215 brothers 7e and sisters 77 under the age of eighteen years, if dependent upon the deceased at the time of the accident, fifteen per centum of such wages for the support of each such person until of the age of 76 — Reference to N. C. C. A. Half brother as dependent, 6 N. 0. C. A. 264. 77 — Right of unmarried sister to award In addition to award granted parents. — The deceased met an acciden- tal death while engaged in a hazardous occupation as an employee of the appel- lant. He was 23 years of age, unmar- ried and lived with his father's family. In addition to his father and mother he was survived by a brother and sister, both of whom lived with their parents, and a married sister whose family occupied the second story of the fam- ily J s home, for which she paid a small rental. The father was 60 years of age, and so afflicted with rheumatism that he was able to do but little work. His small earnings, were turned over to the family to be used in the maintenance of the family. The sister was a deli- cate schoolgirl 15 years of age. The brother was 19 years of age and out of Ms weekly earning of $8 or $9 he paid $4 or $5 per week to his mother for his board. The house was owned by the mother, was assessed for $2,600, and mortgaged for- $2,000. The deceased received a weekly wage of $12.98, out of which he voluntarily paid his mother, to assist in the maintenance of the family, from. $8 to $10, usually the lattej sum. These contributions con- stituted the family's income. The girl earned nothing, had no independent means of support and this fund was the only money out of which shelter, board, and clothing were furnished her. In ad- dition to awarding the father and mother each 15 per cent, of the weekly wages of the deceased, this girl was awarded $1.95 per week until she should arrive at the age of 18. The em- ployer appealed from the award granted for the benefit of the sister of the de- ceased. The appellant contended that the sister was not a, dependent within the meaning of the statute, for the rea- son that the moneys for her support were not paid directly to her individ- ually by the deceased, and that her par- ents were legally chargeable with such support. The court held, that the sister as well as the father and mother was a dependent of the deceased within the intent of the statute; that if dependent upon the moneys contributed to her sup- port by the deceased, such dependency was not affected by the fact that the moneys were so applied by a person to whom they had been paid by the de- ceased for that purpose; and that the statute does not limit the right to an award to those dependents who had the legal right to compel the de- ceased to furnish them support, but applies as well to cases where the per- son was dependent for support upon the voluntary contributions of the deceased. The court held that there was no merit in the appellant's contention that, by reason of the parents being legally chargeable with the support of the daughter, the award to them must be deemed to include any benefit to which, she might otherwise be entitled, and hence that an award to her was grant- ing double compensation, because it might just as well be argued that mak- ing an award to the mother constituted double compensation, and that her right to death benefits was merged in her husband's, by reason of his legal liability for her support. After quoting section 16, subdivision 4, of the statute the court said: "The statute plainly in- tended that the award to each person should be for the support of such per- son. * * * The statute does not require that a person shall be wholly dependent in order to be entitled to the death benefit, and the fact that the sister was in part dependent for her 1216 10 Negligence and Compensation Cases Annotated. H 10 eighteen years; and for the support of each parent, 78 or grandparent, of the deceased, if dependent upon him at the time of the accident, fifteen per centum of such wages during such dependency. But in no case shall the aggregate amount payable under this subdivision exceed the difference between sixty-six and two-thirds per centum of such wages, and the amount payable as hereinbefore provided to surviving wife support from sources other than the con- tributions of the deceased will not de- prive her of the benefit of the statute. Actual partial dependency of a person bearing one of the several relationship specified in the statute will suffice." Walz v. Holbrook, — App. Div. (N. Y.) — , 155 N. T. Supp. 703 (1915). References to N. C. C. A. Sister as dependent, 6 N. C. O. A. 363, 364. Half sister as dependent, 6 N. 0. C. A. 264. 78 — Dependency of mother having small means and other source of rev- enue, on son. — From an award of com- pensation in favor of the mother of the decedent the employer and the insur- ance carrier appealed. The appellants contended that the mother was not de- pendent. In disposing of this conten- tion the court said: "But it has been determined by the commission, as a fact, that she was dependent, and under section 20 of the act, where there is any evidence to support such a finding, the decision of the commission is ' final ' and we are not permitted to review it. Matter of Hendricks v. See- man Bros., 155 N. Y. Supp. 638, handed down at the November term. In the record before us there is much evidence on the question of dependency of the mother, and, although it is extraneous to our province to express ourselves on the subject, we may say that we are convinced that the finding of the com- mission was fully justified by the facts presented. The mother had some small means and some other sources of revenue at the time her son died, but the courts will not hold that a claimant must be reduced to absolute want or be declared a pauper, in order to come within the provisions of the act. Partial depend- ency is sufficient. Matter of Walz v. Holbrook, Cabot & Bollins Corp., 155 N. Y. Supp. 703, handed down at the November term." The award was af- firmed. Bhyner v. Hueber Bldg. Co., — App. Div. (N. Y.) — , 156 N. Y. Supp. 903 (1915). Dependency of father on married son. — This is a claim for compensation for the benefit of the father of the deceased. An award of compensation had been made for the benefit of the widow of the deceased, about which there was no question. The father of the deceased lived in Italy and an award of $1.51% per week was made for his benefit, which was subsequently commuted, under section 17 of the compensation law, to the sum of $444.09. Subse- quently on application of the employer the claim was reopened by the com- mission for further consideration. The deceased's brother testified that he and the deceased were in the habit of send- ing from $5 to $10 per month each, to their father. There were also receipts of money sent by the deceased, and it was further shown that the father was in very needy circumstances. The rec- ords also contained the testimony of the mayor and principal citizens of the town where the father resided, which tended to support his claim. The com- mission reinstated the former award and it was commuted, under "section 17, to the sum stated above and ordered paid, Brio v. Boxley & Herrick, 1 St. Ind. Coram. Bull. (No. 5, 1915) 11, 6 N. Y. St. Dep. Eep. (No. 36, p. 87, 1915). nil New York Appendix. 1217 (or dependent husband) or for the support of surviving child or children. Any excess of wages over one hundred dollars a month shall not be taken into account in computing compensation under this section. All questions of dependency shall be determined as of the time of the accident. 79 (Effective immediately.) IT 11. Aliens, § 17. Compensation under this chapter to aliens not residents (or about to become nonresidents) of the United States or Canada, shall be the same in amount as provided for residents, except that the com- mission may, at its option, or, upon the application of the insurance carrier, shall, commute all future installments of compensation to be paid to such aliens, by paying or causing to be paid to them one-half of the commuted amount of such future installments of compensation as deter- mined by the commission. 80 Whether aged mother owning suffi- cient property for her own support de- pendent on single son. — The deceased was unmarried and lived with his mother who was 60 years of age and owned property worth $14,000. The deceased met with an accident which arose out of and in the course of his employment and which resulted in his death. His mother claimed compensa- tion on the theory that the deceased helped to keep up the home and that she was therefore dependent upon him for support. The commission denied the claim on the ground that the stat- ute never contemplated the compelling an employer to contribute to the sup- port of a mother in order that, on her decease, she might leave considerable property to be distributed to other peo- ple. An award for funeral expenses only was made. Williams v. Coney Island Const. Co., 6 N. T. St. Dep. Bep. (No. 31, 62, 1915). References to N. 0. O. A. Mother as dependent, 6 N. C. C. A. 242, 247. Father as dependent, 6 N. C. C. A. 242, 244. Stepmother as dependent, 6 N. C. C. A. 247. Father of minor, ascertaining extent of dependency of, 5 N. C. C. A. 716. Deduction of contributions by father to maintenance of minor improper in ascertaining father's dependency, 5 N. C. CA. 716. Whether promise of son to help mother renders her dependent, 9 N. C. C. A. 584. ' Dependent mother, basis for com- puting compensation, 4 N. C. C. A. 592. Dependency of parent, sufficiency of evidence, 4 N. C. 0. A. 776. 79 — Whether provision that expected increase in case of minor may be con- sidered as affected by requirement that dependency be determined as of time of accident. — It has been held that the statutory requirement that the ques- tion of dependency shall be determined as of the time of the accident, relates in no manner to the right of the com- mission to consider the probable earn- ing capacity of an injured minor em- ployee. Kilberg v. Vitch, — App. Div. (N- Y .) — , 156 N. Y. Supp. 971 (1915). 80 — Reference to N. C. C. A. Aliens as dependents, 9 N. C. 0. A. 592-595; 6 N. C. C. A. 264, 265. 1218 10 Negligence and Compensation Cases Annotated. 11 12 11 12. Notice of injury. § 18. Notice 81 of an injury for which compensation is payable under this chapter shall be given to the commission and to the employer within ten days after disability, and also in case of the death of the employee resulting from such injury, within thirty days after such death. Such notice may be given by any person claiming to be entitled to compensa- tion, or by some one in his behalf. The notice shall be in writing, 82 and contain the name and address of the employee, and state in ordinary language the time, place, nature and cause of the injury, and be signed by him or by a person on his behalf or, in case of death, by any one or more of his dependents, or by a person on their behalf. It shall be given to the commission by sending it by mail, by registered letter, addressed to the commission at its office. It shall be given to the em- ployer by delivering it to him or sending it by mail, by registered letter, addressed to the employer at' his or its last known place of residence ; provided that, if the employer be a partnership then such notice may be so given to any one of the partners, and if the employer be a corporation, then such notice may be given to any agent 83 or officer 84 81 — Failure to give notice of injury to employer. — The claimant was injured in 1913 before the- compensation law was enacted. He continued to do lighter work for the same employer and at the same salary until April 13, 1915, when he was discharged. On April 18, 1915, he submitted to an operation and elaimed that on August 1, 1915, while lifting a heavy artiele he felt a pain in his right side, which he found was another hernia. He made no report to his employer of receiving the second injury until he was discharged, which was eight and one-half months after the occurrence of the second injury. The commission held that the failure to give notice of the injury prejudiced the employer and the insurance carrier on the ground that this case called for prompt notice to the employer and that the claim for compensation looked sus- picious because it was not made until after his discharge, and further because the testimony about the second injury was vague. The claim for compensa- tion was denied. Opitz v. Tietje, 6 N. Y. St. Dep. Eep. (No. 31, p. 63, 1915). References to N. C. C. A. Hernia, notice of accident where compensation sought for, 6 N. C. C. A. 400, 403. Report of injury by fellow-employee as sufficient, 9 N. C. 0. A. 1125. Notice of injury to wife of employer as sufficient, 9 N. C. C. A. 1125, 1126. Knowledge by employer of accident as rendering notice unnecessary gen- erally, 9 N. C. C. A. 1119-1122. Notice of injury from second acci- dent, 9 N. C. C. A. 979-982. 82 — References to N. C. C. A. Notice of injury by telephone as suf- ficient, 9 N. C. C. A. 1124, 1125. Whether informal notice to employ- er 's representative sufficient where em- ployer has knowledge of injury, 9 N. C. C. A. 1123, 1124. Verbal notice of injury as sufficient under the workmen's compensation acts, 9 N. C. C. A. 984-985. 83— Reference to N. C. C. A. Notice of injury to agent or officer of employer as sufficient, 9 N. O. C. A. 749-752. 84— Reference to N. C. C. A. 1112 New York Appendix. 1219 thereof upon whom legal process may be served, or any agent in charge of the business in the place where the injury occurred. The failure to give such notice, unless excused by the commission either on the ground that notice for some sufficient reason S3 could not have been given, or on the ground that the state fund, insurance company, or employer, as the case may be, has not been prejudiced 80 thereby, shall Notice of injury to officer or agent of employer as sufficient, 9 N. C. C. A. 749-752. 85 — Ignorance of law as excuse for delay in giving written notice of injury to employer. — The claimant was em- ployed as foreman of laborers by a cor- poration engaged in general contracting business and at the time of the accident was constructing a subway. On April 1, 1915, while the claimant was working on that job, directing some laborers in unloading a truck of stone, a piece of stone struck him in the right eye by reason of which injury he was disabled until November 4, 1915. He did not give his employer written notice of the injury until July 23, 1915, but the em- ployer was not prejudiced by the delay. The claimant's delay in giving the em- ployer written notice was occasioned by reason of ignorance of the law. The commission held that the injuries arose out of and in the course of his employ- ment and the failure to give written notice within ten days was excused for the reason that the employer had not been prejudiced. Marinaccio v. Flinn- O'Eourke Company, Inc., 6 N. T. St. Dep. Eep. (No. 34, p. 45, 1915). Claim agent calling for settlement as excuse for failure to give notice. — About five days after claimant sus- tained the injuries for which he claimed compensation, a claim agent of the de- fendant called upon him and had some conversation in reference to a settle- ment in consequence of this, the claim- ant failed to serve written notice upon his employer within ten days of the accident. The commission held that the failure to give written notice of his in- juries to his employer within ten days of the accident was excused, on the ground that the employer had not been prejudiced thereby. Sauter v. New York Cent. R. Co., 6 N. Y. St. Dep. Eep. (No. 33, p. 61, 1915). References to N. 0. C. A. Delay in notice of accident and death, excuses, 3 N. 0. C. A. 230. Delay in giving notice occasioned by mistake, 9 N. C. C. A. 1038-1042. Excuse for failure to give notice of injury when seriousness of is appar- ent, 9 N. C. C. A. 1033-1038. When reasonable cause exists for de- lay in giving notice of injury under compensation acts, 9 N. C. C. A. 1028- 1036. 86 — Failure to give employer notice of injury within ten days — Employer not prejudiced.— The claimant was a watchman and sustained an injury to his leg on March 8, 1915, which -arose out of and in the course of his employ- ment. He worked for four days after the accident and then was unable to work any further, between the date of the accident and September 10, 1915, ex- cept 18 days. After deducting the said 18 days he did not give notice of his injury to his employer within ten days, but did tell his foreman of his injury within that time. Award of compensation was made on the ground that the failure of the claimant to give written notice of his injury to his em- ployer within ten days of the accident was excused for the reason that his employer was not prejudiced thereby. ', Birn v. Bradley Contracting Company, 6 N. Y. St. Dep. Eep. (No. 32, p. 47, 1915). 1220 10 Negligence and Compensation Cases Annotated. 13 be a bar S7 to any claim under this chapter. IT 13. Medical examination. § 19. An employee injured claiming or entitled to compensation under this chapter shall, if requested by the commission, submit himself for medical examination at a time, and from time to time, at a place reasonably convenient for the employee, and as may be provided by the rules of the commission. If the employee or the insurance carrier request 88 he shall be entitled to have a physician or physicians of his own selection to be paid by him present to participate in such examina- tion. If an employee refuse S9 to submit himself to examination, his right to prosecute any proceeding under this chapter shall be suspended, and no compensation shall be payable, for the period of such refusal. f 14. Determination of claim for compensation. § 20. [As amended, Laws 1915, c. 167.] At any time after the expiration of the first fourteen days of disability on the part of an injured employee, or at any time after his death, a claim for compensa- tion may be presented to the employer 90 and if rejected or if within ten References to N. C. C. A. Failure to give notice "as soon as practicable," 9 N. C. C. A. 967-979. Employer prejudiced by want of no- tice of injury under workmen's com- pensation acts, 9 N. 0. 0. A. 966-990. 87 — References to N. 0. O. A. Want of written notice as barring proceedings when employer has knowl- edge of injury, 9 N. 0. C. A. 1122-1123. Failure to give notice as bar to pro- ceedings, 9 N. C. C. A. 1042-1044. Failure to give notice within statu- tory period, 9 N. C. C. A. 982-990. 88 — Reference to N. C. C. A. Medical examination, necessity of re- quest for in writing, 10 N. C. C. A. 998- 999. 89 — Refusal to undergo operation, ef- fect on recovery of compensation, 9 N. C. C. A. 1252, note 74. References to N. C. C. A. Medical examination, refusal to sub- mit to as provided by compensation acts, 10 N. C. 0. A. 998-1006, 200-201. Medical examination, right of em- ployee to impose conditions as to, 10 N. C. C. A. 1004-1006. 90 — Delay in filing claim — Alleged ignorance of law. — The claimant al- leged that while cutting cardboard, the knife which he was using slipped, cut- ting the index finger on right hand. In- fection set in and the finger became al- most completely ankylosed. so that he had no power to flex it. The claim was, for the third time, denied by the com- mission on account of insufficient evi- dence. The claim was not filed for more than eight weeks after the happening of the alleged accident. This delay was explained by claimant on 'the ground that he did not know of the compensation law until informed by a friend and that he then immediately filed the claim. There were no eyewit- nesses to the accident and the report of the attending physician was not clear as to the nature of the claimant's in- jury. The claimant's own evidence was very conflicting as to the nature of his injury. At the first hearing he said his disability was not due to an accident, at A14 New York Appendix. 1221 days after presentation, a report containing an agreement for compen- sation be not made and filed with the commission as provided by this section, the claim may be presented to the commission. The commission shall have full power and authority to determine all questions in relation to the payment of claims presented to it for compensation under the provisions of this chapter. The commission shall make or cause to be made such investigations as it deems necessary, and upon application of either party, shall order a hearing, 91 and within thirty days after a claim for compensation is submitted under this section, or such hearing closed, shall make or deny an award, determining such claim for compensation, and file the same in the office of the commission, together with a statement of its conclu- sions of fact and rulings of law. The commission may before making an award, require the claimant to appear before an arbitration committee .appointed by it and consisting of one representative of employees, one representative of employers, and either a member of the commission or a person specially deputized by the commission to act as chairman, before which the evidence in regard to the claim shall be adduced and by which it shall be considered and reported upon. Immediately after such filing the commission shall send to the parties a copy of the decision. Upon a hearing pursuant to this section either party may present evidence and be represented by counsel. The decision of the commission shall be another time he said it was due to a blister, and at the subsequent hearings he said it was due to the cutting of his finger. This conflict was partly due to the fact that he was extremely ' illiterate and unable to comprehend the meaning of the questions asked or to appreciate their importance. The com- mission was of opinion that the state- ments of claimant being so contra- dictory, coupled with the delay in noti- fying the employer of the accident, made the case so devoid of convincing evidence that the denial of the motion for rehearing and decision heretofore made should not be disturbed. New- man v. Pohs Mfg. Co., 1 St. Ind. Comm. Bull. (No. 1, 1915) 11. References to N. C. C. A. Failure to file claim for compensa- tion with employer, when immaterial, 4 N. C. C. A. 855, 857n; 3 N. 0. C. A. 693n. When claim may be made by depend- ents under compensation acts, 9 N. C. 0. A. 909-910. Notice of claim by mail, 9 N. C. C. A. 904-906. Requirements as to filing claim, 9 N. C. C. A. 910-913. Waiver of notice of claim, 9 N. O. 0. A. 903-904. Estoppel to claim want of notice, 9 N. C. C. A. 902-903. When cause reasonable for delay in giving notice of claim under compen- sation acts, 9 N. O. C. A. 898-900. When want of notice of claim not prejudicial, 9 N. C. C. A. 900-902. Statutory provisions relating to de- lay in or failure to give notice of claim under compensation act, 9 N. O. C. A. 896-898. 91 — Reference to N. C. C. A. Notice and hearings, 3 N. O. C. A. 653. 1222 10 Negligence and Compensation Cases Annotated. H 14 final as to all questions of fact, 92 and, except as provided in section 92 — Conclusiveness of findings by commission as to happening of accident. — The deceased was employed as a fore- man, and while sweeping dirt and peb- bles off the pavement in the vicinity of the work being done by a gang of men over whom he had charge, he suddenly' fell to the street. Seventeen days later he died. An autopsy revealed that in his fall he had evidently received a fracture of the skull. The same autopsy disclosed that the fall had in all prob- ability been due to an attack of cardiac syncope, to which the previous condition predisposed it. The commission based its award on a finding that the de- ceased stumbled over some obstruction on the street. There was no evidence adduced to warrant such a finding. The deputy who sat in behalf of the com- mission said: "I am going to deny your request and allow the claim on the basis that the accident arose out of and in the course of the employment, in the absence of proof to the contrary, and on the further ground that the testimony of the witnesses would indicate that there was an accident." In reversing the award the court said: "This, and the commission 's subsequent finding of fact as to an ' accident ' through ' stum- bling over some obstruction, 'were, of course, as we have already pointed out, lacking in evidence tending to support the same and hence fully reviewable here. * * » The commission is not authorized, however, to make an award under the act in the absence of at least some evidence that the employee met with an injury while he was at work for the specified employer and as a conse- quence of something that had a rela- tion to the work of the employer, some- thing done by him or by others while he was so employed. The act does not undertake to make the employer an insurer of the life, health, or regular heart action, of an employee during the hours of labor, in the absence of proof that injury was due, for example, to a fall caused by cardiac syncope arising from overexertion in the course of the employment. The errors of this com- mission were such as to fall clearly within the powers and duty of this court to curb and correct. * * * The claim is remanded to the commis- sion; unless further and satisfactory proof is adduced, it should be dis- missed. ' ' Collins v. Brooklyn Union Gas Co. — App. Div. (N. Y.) — , 156 N. Y. Supp. 957 (1915). Conclusiveness of finding that remote cause of death was ivy poisoning. — • Where the commission finds that ivy and septic poisoning was the remote cause of death and that the decoased em- ployee 's poisoned condition predisposed him to acute congestion of the lungs of which he died, the commission's finding in this respect is final, it appearing that there was some evidence to warrant it. Plass v. Central New England Ky. Co., — App. Div. (N. Y.) — , 155 N. Y. Supp. 854 (1915), aff'g 9 N. C. C. A. 1209. Finality of finding of dependency by commission. — Where the commission has found as a fact that the mother and brother of a deceased employee were do- pendent upon him, and there was some evidence to support this finding, tho same is final and not subject to review by the court. Hendricks v. Seeman Bros., — App. Div. (N. Y.) — , 155 N. Y. Supp. 638 (1915). Conclusiveness of finding of facts by commission — Finding based on imma- terial facts. — The employer was a gen- eral contractor, and performed con- tracts in the State of New York and various other states. The decedent re- sided in New York. He had been em- ployed at various times since 1912, to work on jobs outside of the state. While working on a job at Towanda, Pa., he agreed with a representative of the company to go to Ford City, Pa., to do a job there. He did not go to Ford 1114 New York Appendix. 1223 twenty-three, as to all questions of law. When a claim is presented City as agreed and the company wrote him from Horseheads, N. Y., to his home at Callicoon, N. Y., urging him to go. He used the money which the company sent him for transportation, but did not go. The company again wrote from Horseheads, urging him to go, and finally sent a, check payable to the rail- road company for fare. He went to Ford City, and was there killed while working on a bridge the company was erecting at that place. The commission found that the decedent was employed as a foreman by the company, and that for the purpose of his work his com- pany had sent him from New York to the place where the accident happened. From an award of compensation the em- ployer and insurance carrier appealed. The question at issue was whether the finding of facts by the commission was conclusive. The decision of the court was as follows: "The findings are in most general terms, and in arriving at the conclusions reached we are not hampered by the rule that the decision of the commission shall be final as to all questions of fact, nor by the pre- sumption that the claim comes within the terms of the statute. The employer and the insurance carrier are entitled to a hearing. The hearing is of a sum- mary character, and the commission is not bound by the ordinary rules of evi- dence and practice. Nevertheless its determination as to the facts is a quasi judicial determination, and must rest upon the facts presented to it, the undisputed facts of the case and the reasonable inferences which may be drawn from them. The commission can- not act arbitrarily on the information it receives, or in direct violation of the conceded facts: Its duty, therefore, is to base its determination upon the un- disputed facts of the case and the rea- sonable inferences to be drawn from the general situation. When its findings are without evidence, and are in direct con- 10 N. C. C. A. N. Y. App.— 6 flict with the undisputed facts, and all reasonable inferences which may be drawn from them, its determination may be reversed as error of law." In referring to facts found by the commis- sion the court further said: "In a sense these are facts, but they are' not the important facts. The findings of fact by the commission must be read in con- nection with the known facts of the ease. The findings omit the material facts, and do not decide the real ques- tion litigated, but evade it. They are so indefinite and vague that the undis- puted facts render them valueless as the basis of an award. Accepting the meager findings of fact as true, the un- disputed facts not found show that the findings are immaterial to the question at issue, and that the . claimants are not entitled to an award. The award there- fore rests upon an error of law. In a sense the company did send the dece- dent from New York to the place where the accident happened, and he was a foreman; but he was employed in re- cent years as foreman only from time to time as to particular jobs outside of the state, and he was not a foreman in the general and regular employ of the company, and the particular job for which he was employed in this case was outside of the state of New York, and by accepting such employ- ment and entering upon that work he put himself beyond the provisions of the act. "We conclude, therefore, that at the time of the employment, and for a long time prior thereto, the decedent was not engaged in a hazardous employ- ment in the state of New York, but was engaged in an independent service in the state of Pennsylvania, which em- ployment does not come within the ben- efit of the act." Gardener v. Horse- heads Const. Co., — App. Div. (N. Y.) — , 156 N. Y. Supp. 899 (1915). 1224 10 Negligence and Compensation Cases Annotated. H 14 to an employer, and the employer and employee, or in case of death, his principal dependent, enter into an agreement 93 for the payment of Method of computing wages — Final- ity of commission decision as to. — The appellant contended that the method of computing the deceased's wages was incorrect. In approving the method used by the commission, the court said: "We think the conclusions reached by the commission were cor- rectly worked out. Of course, we are unable to say what mental process the commission employed in arriving at the figures given in their decision; but it seems to us that, under the evidence, the figures given might, very properly, have been the result of the method of computation pointed out in subdivision 3 of section 14. But here again a find- ing of fact, based upon evidence, is presented to us, and we are powerless to criticize, modify, or revoke. * * * We cannot, except by usurpation, in- vade the realm of facts, for it was the clear intent of the legislature that the decision of 'the commission shall be final as to all questions of fact.' Of course, if there are no facts, and the decision is arbitrary, unfair, and un- reasonable, a question of law arises, and we may right the wrong. Gardener v. Horseheads Construction Co., 156 N". Y. Supp. 899, 10 N. 0. C. A. 1223. The commission is the sole judge and the ' final ' judge of the facts, and this court is not only forbidden to trespass upon the jurisdiction of the commission in this field, but, by section 20 of the act,- it is circumscribed, even, in its review of questions of law. It was the pur- pose of the legislature to create a tri- bunal to do rough justice — speedy, sum- mary, informal, untechnical. With this scheme of the legislature we must not interfere; for, if we trench in the slightest degree upon the prerogatives of the commission, one encroachment will breed another, until finally sim- plicity will give way to complexity, and informality to technicality." The award was affirmed. Rhyner v. Hueber Bldg. Co., — App. Div. (N. Y.) — , 156 N. Y. Supp. 903 (1915). Finality of commission's decision as to disability from injury to eye, 9 IT. C. C. A. 1253, note 77. Conclusiveness of commission's find- ings, Powley v. Vivian & Co., Inc. (N. Y. App. Div.), 10 N. C. C. A. 835. References to N. C. C. A. Findings of facts on hearsay evi- dence under workmen's compensation acts, 10 N. C. O. A. 545-561. Conclusiveness of findings of Indus- trial Accident Boards or Commissions, 8 N. C. C. A. 1065, and note. Finding of fact by board when sup- ported by evidence as final, 8 N. C. C. A. 889. Finding of facts, review on appeal, 7 N. C. C. A. 906; 6 N. C. C. A. 944, 945. Findings of board as to whether in- jury arose out of and in course of em- ployment, conclusiveness, 4 N. C. C. A. 549; 5 N. C. C. A. 837. Pneumonia caused by accident aris- ing out of and in course of employment, conclusiveness of board's findings as to, 5 N. C. C. A. 837. Serious and wilful misconduct, con- clusiveness of findings as to, 5 N\ C. C. A. 645. Extent of injuries, conclusiveness of finding of board, as to, 5 N. C C. A. 609. Dependency of minor children, con- clusiveness of board's findings, 4 N. C. C. A. 552. Conclusiveness of board findings under compensation actB, Western In- demnity Co. v. Pillsbury (Cal. 1915), 10 N. C. C. A. 1. 93 — References to N. C. C. A. Settlement between parties, effect of, 7 N. C. C. A. 798. Agreement between employee and ^15 New York Appendix. 3225 compensation therefor pursuant to this chapter, a joint report of such claim containing such agreement shall be made to the commission upon a form prepared by it and signed by the employer and employee, or in case of death his principal dependent. The commission shall examine such report and approve the same when the terms are strictly in accord- ance with this chapter and such approval shall constitute an award. However, the commission may make an award in the manner provided in this section in any case, and if the terms of the award vary from the joint report, the employer shall comply with the' award. In case of unfair dealing or of bad faith on the part of the employer under this section, the commission may impose a penalty of not more than ten per centum of the award. (Effective immediately.) U 15. Advances to employee. § 20-a. [Added Laws, 1915, c. 168.] Any employer shall upon the making of the agreement provided for in section twenty advance to any injured employee or to the principal dependent of a deceased employee, the payment or payments provided for in the agreement, in return for which he shall receive a receipt on a form supplied by the commission and signed by the person receiving the money, which receipt shall specifically state in what capacity the signer acted while so receiving such money; such receipt shall be forwarded to the commission within forty-eight hours after date of its issuance and the sum stated on its face shall -be returned to said employer as provided in section twenty-five. Prior to the making of said agreement or in the event of no agreement, any employer may at his option advance to any injured employee or to the principal dependent of a deceased employee any sum of money, in return for which he shall receive a receipt on a form supplied by the commission and signed by the person receiving the money, which receipt shall specifically state in what capacity the signer acted while so receiv- ing such money ; such receipt shall be forwarded to the commission within forty-eight hours after date of its issuance. Should any agreement or award be made the sum so stated on the face of the receipt shall be cred- ited to the payment under the award or agreement and shall be repaid as hereinbefore provided. 94 Any money so advanced shall be at the employer's risk. (Effective immediately.) employer or insurer as to compensation, effect of, 7 N. C. C. A. 798. Disfigurement because of injury, whether covered by agreed compensa- tion for disability, 7 N. C. C. A. 805. Sufficiency of agreed compensation, 7 N. C. C. A. 806. 94 payment by way of damages in settlement for injury — Whether charge- able as advance. — The deceased was employed as a conductor and was killed while in charge of a train made up of both interstate and intrastate cars. The employer apparently acting under the supposition that the case was not com- pensable made a payment of $800 to 1226 10 Negligence and Compensation Cases Annotated. H 16 1116. Presumptions. § 21. In any proceeding for the enforcement of a claim for compen- sation under this chapter, it shall be presumed in the absence of sub- stantial evidence to the contrary 1. That the claim comes within the provisions of this chapter ; 95 2. That sufficient notice 98 thereof was given ; the administrators of the estate of the deceased, in consideration of which the administrators gave a full release from all liability growing out of the accident. The railroad company claimed the right to set off this amount against the appli- cant's claim for compensation under the compensation laws. In passing upon this contention the commission said: "The payment of $800 already made cannot be offset against the compensa- tion to bo awarded. The money has not been paid in such wise that it will reach in its entirety the claimants under the compensation law and it was not paid as compensation in pursuance of section 20-a of that law. Should it be made to appear that any part of the $800 actually reached the claimants here, it may, on application of the em- ployer, be offset against their award. ' ' Buell v. New York Cent. & H. E. R. Co., 6 N. Y. St. Dep. Eep. (No. 33, p. 78, 1915). 96 — Injury to one performing duties partially covered by compensation act — Presumption in- section 21 not con- trolling. — The deceased was employed at a building and from sundown to about 11 o 'clock it was his duty to run the elevator to take tenants in and out and to take up and down the scrub women. It was also his duty to go out on the street from time to time and try the doors at the entrance to the building, and later in the night to go through the building periodically to see that everything was in proper con- dition. On December 13, 1914, at about 11:30 p. m. he was found lying in the doorway at the entrance to the build- ing, in a helpless condition suffering from cerebral hemorrhage, fracture of the skull, and a lacerated wound over the right eye. He was taken to a hos- pital but died without regaining con- sciousness. There was no evidence other than vague rumors, which hardly reached the dignity of testimony, to. throw any light on the manner in which the deceased met death. In passing upon the claim for compensation Com- missioner Lyon said that the finding of the deceased in a mutilated and uncon- scious condition was sufficient proof that he suffered accidental injury; that under the rulings of the appellate divi- sion and the commission his employment which was at least partially that of running the elevator was to some ex- tent covered by the compensation act, and this being so he was originally of opinion that the presumption provided for by section 21 of the compensation act, to the effect, ' ' that the claim comes within the provision of this chapter," was controlling. But on the authority of Gleisner v. Gross & Herbener, 155 N. Y. Supp. 946, holding that where an employee is engaged in an employment not generally denominated hazardous, but who incidentally performs at times services that are hazardous within the meaning of the statute, there must be proof connecting the accident with the particular hazard before compensation can be awarded, it was held that there being no proof here that the deceased was injured while actually operating the elevator, compensation must be de- nied. Fitzsimmons v. Wadsworth, 6 N. Y. St. Dep. Rep. (No. 31, p. 67, 1915). 96 — Reference to N. C. C. A. Application for compensation pre- sumed when payment made, 5 N. C. C. A. 97. 1117 New York Appendix. 1227 3. That the injury was not occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another ; 4. That the injury did not result solely from the intoxication of the injured employee while on duty. 11 17. Modification of award. § 22. Upon its own motion or upon the application of any party in interest, on the ground of a change in conditions, the commission may at any time review any award, and, on such review, may make an award ending, 97 diminishing 98 or increasing 99 the compensation previously . 97 — Bight to further compensation denied where it is shown that patient is malingering. — The claimant was em- ployed as a carpenter and fell from the second floor to the basement, injur- ing his back and sides. He was taken to a hospital and discharged in ten days as cured. The hospital record showed that at the time he was admitted he was suffering from a shocked condition and abrasion of right arm, leg, and back. He was awarded compensation at the rate of $15.00 per week for a period of 19 weeks and . claimed to be still in- capacitated and unable to work. His physician testified that claimant was suffering from an enlarged liver as result of the accident and to which he attributed his inability to work. The weight of the medical evidence, sup- ported by the testimony of an eminent specialist who was selected by the com- mission to make an impartial examina- tion, tended to show that he was not suffering from enlargement of the liver but that he was malingering. The com- mission said that the supposition that a man! with a family would be loath to continue on compensation at two- thirds of his earning capacity if he was able to work, had no foundation in this case by reason of the fact that the claimant was unmarried and that fif- teen dollars per week compensation would support him in comparative ease without the necessity of any exertion and basing its opinion on the weight of the medical evidence it was of opin- ion he was able to work and there- fore not entitled to further compensa- tion. Glidder v. Haliver, 1 St. Ind. Comm. Bull. (No. 4, 1915) 10, 6 N. Y. St. Dep. Rep. (No. 32, p. 63, 1915). Offer of work by employer as af- fecting recovery of compensation, 9 N. C. C. A. 1256, note 80. References to N. C. C. A. Offer of work as affecting recovery of compensation under compensation acts, 10 N. O. C. A. 1081-1094. Offer of work, total incapacity of em- ployee preventing acceptance, 10 N. O. C. A. 1087-1088. Suitability of employment offered, 10 N. C. C. A. 1081-1087. Inability to perform work as reason- able excuse for refusal of offer of, 10 N. C. C. A. 1088-1089. Dangerous work, refusal of offer of, 10 N. C. C. A. 1089-1090. Refusal of indefinite and misunder- stood offer of work, effect, 10 N. C. C. A. 1090. Cessation of- payments where disabil- ity can be overcome by working, 4 N. C. C. A. 860, 861n. Earning power, effect of refusal of offer of light work on determination of loss of earning power, 10 N. C. C. A. 1094. 98 — Reference to N. C. C. A. Reduction of award on account of advanced age of injured workman, 7 N. C. C. A. 498. 99 — Application for further award. — 1228 10 Negligence and Compensation Cases Annotated. 11 17 awarded, subject to the maximum or minimum provided in this chapter, . and shall state its conclusions of fact and rulings of law, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys already paid. H 18. Appeals from the commission. § 23. An award or decision of the commission shall be final and con- clusive upon all questions within its jurisdiction, as against the state fund 1 or between the parties, unless within thirty days after a copy of such award or decision has> been sent to the parties, an appeal be taken to the appellate division of the supreme court of the third department. The commission may also, in its discretion, where the claim for com- pensation was not made against the state fund, on the application of either party, certify to such appellate division of the supreme court, On April 26, 1915, claimant was work- ing for his employer as a laborer help- ing to pile coila of wire onto a truck, when a heavy coil slipped and in trying to prevent it from falling, he made an unusual effort, which strained the ab- dominal walls and tissues, causing a slight double inguinal hernia, by reason of which he was disabled from work until June 21, 1915. An award of com- pensation was made for a period of six weeks, from May 10, 1915, to June 21, 1915. On November 8, 1915, claimant made application for further compen- sation. The evidence showed that there was no disability as a result of the said accident after June 21, 1915. The commission therefore denied the appli- cation. Dougherty v. State Insurance Fund, 6 N. Y. St. Dep. Rep. (No. 33, p. 63, 1915). Increase of disability, '9 N. 0. C. A. 1256-1257, note 82. 1 — Bight of employer to appeal when insured in state fund. — In compensation proceedings, it appeared that the em- ployer was insured in the state insur- ance fund. Compensation had been awarded for the death of the claimant's husband and the employer appealed. After quoting sections 53 and 23 of the compensation act, the court said: "At least as to certified questions a distinc- tion seems to be made between those who insure in the state fund and those who insure with other insurance car- riers. That distinction is probably based on section 53, which gives abso- lute immunity to the employer after insurance in the state fund, while such immunity is not given after insurance with any other carrier. It is true that the employer has a remote interest, even though insured in the state fund, to the end that the risk which he claims not to be within the act may be so decided as affecting any subsequent premiums which he must pay. That interest, however, is too remote an interest to authorize his appeal in a matter where he is not otherwise aggrieved." The court further held that the two sec- tions referred to should be interpreted in the light of the history of the legis- lation which showed that the act of 1913 was a compromise between two proposed acts, the one providing for state insurance and allowing no appeal to the employer, and the other provid- ing for insurance carriers and allowing an appeal to both parties. The appeal was dismissed. Crockett v. State Insur- ance Fund, — App. Div. (N. T.) — , 155 N. T. Supp. 692 (1915). 1118 New York Appendix. 1229 questions of law involved in its decision. 2 Such appeals and the questions so certified shall be heard in a summary manner and shall have precedence over all other civil cases in such court. The commis- sion shall be deemed a party to every such appeal, and the attorney- general, without extra compensation, shall represent the commission thereon. An appeal may also be taken to the court of appeals 3 in all 2 — Award consented to by represent- ative of employer — Effect on appeal. — The claimant's right hand was caught between the rollers of a slitting ma- chine, crushing and exposing several bones of his hand, dislocating the pha* langes, and lacerating the back of the hand and the wrist. By reason of the injury the entire fourth or little finger was removed; the remaining three fin- gers of the right hand were stiffened, but were not amputated. The stump and palm of the hand were uninjured. At the hearing the defendant's repre- sentative stated: "According to the examination of Dr. McKee, it shows that the man has lost the entire use of the hand, inasmuch as he is unable to hold any tools. He only has one finger, the thumb, and we have no objection to paying the man for the loss of use of the hand on that." Thereupon the commission voted an' award for the loss of use of the hand. The employer ap- pealed. It was conceded that the claim- ant did not lose the entire use of the hand, but only of the four fingers, and that the usefulness of the remainder of the hand, including the thumb, was practically unimpaired. The court said: "I am not clear upon these con- ceded facts the claimant should have been allowed for the loss of the use of the entire hand. While the four fingers were stiffened, the thumb was unin- jured, and the claimant is unquestion- ably better off than if the hand had been taken off or rendered entirely use- less. In my judgment, it is unneces- sary to determine this, because the award was made by consent of the at- torney representing the appellants, and, while the appellants afterwards claimed that he exceeded his author- ity, we are unwilling to interfere with the determination of the commission that the award should stand. The award should therefore be affirmed." Cunningham v. Buffalo Copper & Brass Boiling Mills, — App. Div. (N. Y.) — , 155 N. Y. Supp. 797 (1915). References to N. C. 0. A. Review by courts of decision under workmen's compensation acts, 6 N. C. C. A. 548, 570; 4 N. C. 0. A. 523; 3 N. C. C. A. 651; 1 N. C. C. A. 30. Review of decision in compensation matter by appeal, when allowed, 10 N. C. O. A. 983-997. Certiorari, review of compensation decision by, 10 N. C. C. A. 982-983. Review of board decision where, no provision for review made, 10 N. C. C. A. 979-982. Conclusiveness of board's findings on review by courts, 8 N. C. C. A. 1065, 1077. Incapacity, effect of finding as to, 7 N. C. C. A. 906. Evidence which may be considered on appeal from award of commission, 5 N. C. C. A. 793. Sufficiency of evidence to support findings as question of law, 5 N. C. C. A. 613; 4 N. C. C. A. 554. Competency of evidence, review on appeal, 5 N. C. C. A. 917. Amount of award, certiorari to re- view, 4 N. C. C. A. 734. Duration of disability, review of find- ings as to, 4 N. C. C. A. 682. Equitable or legal character of pro- cedure on appeal, 4 N. C. C. A. 60, 516. 3 — Appeal to court of appeals, when allowed, 9 N. C. C. A. 1257-1259, note 84. 1230 10 Negligence and Compensation Cases Annotated. H18 eases where such an appeal would lie from a decision of an appellate division, in the same manner and subject to the same limitations as is now provided in civil actions. Otherwise such appeals shall be subject to the law and practice applicable to appeals in civil actions. Upon the final determination of such an appeal, the commission shall make an award or decision in accordance therewith. 1! 19. Costs and fees. §24. If the commission or the court before, which any proceedings for compensation or concerning an award of compensation have been brought, under this chapter, determines that such proceedings have not been so brought upon reasonable ground, it shall assess the whole cost of the proceeding upon the party who has so brought them. Claims for legal services 4 in connection with any claim arising under this chapter, and claims for services or treatment rendered or supplies furnished pursuant to section thirteen of this chapter, shall not be enforceable unless approved by the commission. If so approved, such claim or claims shall become a lien upon the compensation awarded, but shall be paid therefrom only in the manner fixed by the commission. 11 20. Compensation, how payable. § 25. [As amended, Laws 1915, c. 167.] Compensation under the provisions of this chapter shall be payable periodically by the employer, in accordance with the method of payment of the wages of the employee at the time of his injury or death, and shall be so provided for in any award ; 5 but the commission may determine that any payments may be References to N. C. C. A. Procedure on appeal to supreme court, 4 N. C. 0. A. 60. Review of findings of fact on appeal to supreme court, 5 N. C. O. A. 613; 4 N. O. C. A. 516, 559, 851; 3 N. C. C. A. 569, 585, 652; 2 N. C. C. A. 853. Right of appeal under workmen's compensation acts, 10 N. C. C. A. 978- 997. 4 — Reference to N. C. 0. A. Additional allowance of attorney's fees, 3 N. C. C. A. 604n. 5 — Whether compensation awarded to minor children may be paid to their mother. — The question certified for tie determination of the court was whether compensation awarded for the benefit of the minor children of the deceased could be paid to their mother, the widow and principal dependent of the deceased. The court held that section 16 of the compensation act authorized the pay- ment to the wife, not only of her 30 per cent., but of the additional amount which was allotted for the support of the several children; that this conclu- sion was supported by the provision of section 20 of the workmen's compensa- tion law, as amended by Laws 1915, c. 167, which authorized the wife, as the principal dependent, to make an agree- ment with the employer, subject to the approval of the commission, as to the payment of the award both to herself and for her children; and that under the Domestic Relations Law (Consol. Laws, c. 14, § 80), in regard to real estate, if f21 New York Appendix. 1231 made monthly or at any other period, as it may deem advisable. The state fund or insurance corporation in which an employer is insured shall, within ten days after demand by such employer and on the presentation of evidence of payment of compensation in accordance with this chapter,, reimburse the employer therefor. An injured em- ployee, or in case of death his dependents or personal representative, shall give receipts for payment of compensation to the employer paying the same and such employer shall forward receipts therefor promptly to the commission. The commission, whenever, it shall so deem advis- able, may commute 6 such periodical payments to one or more lump sum payments to the injured employee or, in case of death, his dependents, provided the same shall be in the interest of justice. (Effective imme- diately.) U 21. Enforcement of payment in default. § 26. [As amended, Laws 1915, c. 167.] If payment of compensation, or an instalment thereof, due under the terms of an award, be not made by the employer within ten days after the same is due, the insurance carrier shall be liable therefor and if not paid within ten days after demand by the injured employee or in case of death his dependents or by the commission, the amount of such payment shall constitute a liquidated claim for damages against the self-insurer or insurance corporation, which with an added penalty of fifty per centum may be recovered 7 in an action to be instituted by the commission in the name of the people of the state. An employer who negligently or intentionally defaults in payment of compensation in the first instance under this chapter shall be liable to a penalty of not more than ten per centum of the amount of such compensation, notwithstanding the fact that the insurance corporation or state fund subsequently pays the compensation as provided in this section. If such default be made in the payment of an instalment of compensation and the whole amount of such compensation be not due, the commission may, if the present value of such compensation be computable, declare the whole amount thereof due, and recover the amount thereof with the added penalties, there be no general guardian, the mother is the general guardian of the infants. This law by analogy, it was held, tended to support the construction thus given. Woodcock v. Walker, — App. Div. (N. Y.), 155 N. Y. Supp. 702 (1915). 6 — References to N. C. C. A. Basis for computing commuted pay- ments, 4 N. C. C. A. 862. Life expectancy, character of work award not affected by, 4 N. C. 0. A. 588. 7— Reference to N. C. C. A. Decree on decision of board, 4 N. C. C. A. 523. 1232 10 Negligence and Compensation Cases Annotated. 11 21 as provided by this section. Any such action may be compromised by the commission or may be prosecuted to final judgment as, in the dis- cretion of the commission, may best serve the interests of the persons entitled to receive the compensation or the benefits. Compensation recovered under this section shall be disbursed by the commission to the persons entitled thereto in accordance with the award. A penalty recovered pursuant to this section shall be paid into the state treasury, and be applicable to the expenses of the commission. A claim for compensation presented to the commission prior to the date when this act takes effect shall be' determined by the commission, although such claim shall not have been theretofore presented to the employer as provided by section twenty, as amended by this act. (Effect- ive immediately.) 11 22. Depositing future payments. §27. If an award under this chapter requires payment of com- pensation by an employer or an insurance corporation in periodical payments, and the nature of the injury makes it possible to compute the present value of all future payments with due regard for life contingencies, the commission may, in its discretion, at any time, com- pute and permit or require to be paid into the state fund an amount equal to the present value of all unpaid compensation for which liability exists, in trust; and thereupon such employer or insurance corporation shall be discharged from any further liability under such award and payment of the same shall be assumed by the state fund. •' 23. Limitation of right to compensation. § 28. The right to claim compensation under this chapter shall be forever barred 8 unless within one year after the injury, or if death result therefrom, within one year after such death, a claim for com- pensation thereunder shall be filed with the commission. «' 24. Subrogation to remedies of employee. § 29. If a workman entitled to compensation under this chapter be injured or killed by the negligence or wrong of another .not in the same employ, such injured workman, or in case of death, his dependents, shall, before any suit or claim under this chapter, elect ° whether to 8 — References to N. O. 0. A. Effect of failure to make claim with- in statutory period, 9 N. 0. C. A. 906- 909. Pleading statute of limitations in compensation proceedings, 9 N. C. C. A. 908, 909. 9 — Compensation act as affecting common or statutory law. — "While there can be no question of the power of the legislature, by subsequent enact- ment, specifically or impliedly to repeal a former enactment, the rules of statu- tory construction require that, so far as 1124 New Yobk Appendix. 1233 take compensation under this chapter or to pursue his remedy against such other. 10 Such election shall be evidenced in such manner as the commission may by rule or regulation prescribe. 11 If he elect to take possible, the later enactment shall be construed harmoniously with the exist- ing law, and, so far as the later enact- ment modifies the existing law it shall be limited in its applicability to the particular purpose for which the later statute was enacted. Hence, the pur- pose of the workmen's compensation law being the establishing of a self-sup- porting state insurance fund for the compensation of employees in certain classes of employment, and for the fix- ing of the lowest possible premium rates for employers consistent with such purpose, section 29 must be construed to that extent as only impliedly repeal- ing or modifying the common law and the Personal Property Law (N. Y. Con- sol. L., c. 41, § 41, subd. 1), as to the non-transferability of claims of this character. United States Fidelity & G. Co. v. New York Rys. Co., — App. Div. (N. Y.) — , 156 N. Y. Supp. 615 (1916). Action against third person, failure of employee to elect to bring common- law action, 9 N. C. C. A. 1261-1262, note 89. References to N. C. C. A. Right of action against third per- son, constitutionality of restrictions upon, 10 N. C. C. A. 939. Right of injured workman to sue third person whose negligence caused in- jury as affected by compensation acts, 10EC. C. A. 939-945. 10 — Whether third person causing injury can plead as defense that com- pensation was received. — On appeal, the sole question presented was whether the defendant, who was not the master, could plead as a separate defense that the plaintiff had, prior to the action, made claim for and received compen- sation. In affirming an interlocutory judgment for defendant, the court held, after quoting section 29 of the compen- sation act, that the provisions of the section were neither ambiguous nor ob- scure; that the reason for the statutory declaration as to election was founded upon the common-law rule that there should not be double satisfaction for the same injury; that the right thus to prescribe election was not affected by the circumstance that compensation was, under the statute, to be determined by data which were not prescribed for the jury in an action; and, therefore, that when the injured person received compensation, he could not thereafter maintain an action against the third person causing the injury, as his em- ployer became subrogated to his rem- edies upon the receipt of compensation, and could recover from such third per- son the amount paid. Miller v. New York Bys. Co., — App. Div. (N. Y.) — , 157 N. Y. Supp. 200 (1916). 11 — Whether notice of election con- dition precedent to right to sue third party. — The plaintiff was the employee of a firm engaged in the construction of a building. Upon the same premises, the defendant was engaged in drilling a hole for the plunger of an elevator. In removing the drill for the purpose of cleaning it, the defendant, in some way, upset the runway on which the plaintiff was at work wheeling mortar, and he was thrown off, sustaining the injuries' of which he complains. In an action in the municipal court of the City of New York to recover damages for injuries sustained through the negligence of the defendant, the plaintiff had a verdict, and the judgment entered thereon was affirmed by the appellate term, with leave to the defendant to appeal. The question raised by the appeal was whether, under the workmen's compen- sation law (Consol. Laws C. 67; Laws 1913, c. 816, as re-enacted by Laws 1234 10 Negligence and Compensation Cases Annotated. H 24 compensation under this chapter, the cause of action against such other shall be assigned 12 to the state for the benefit 13 of the state insurance 1914, c. 41) the plaintiff could maintain the action without alleging and proving his election to do so, pursuant to section 29 of that act. In affirming the judg- ments of the lower courts the court held that neither the language nor the pur- pose of section 29, would justify a con- struction holding the giving of notice to be a condition precedent to the mainte- nance of a common-law action by an employee against a third party, because the requirement that the employee give evidence of his election to sue was in- tended solely for the benefit of the em- ployer or the person liable for the statutory compensation, and was not in- tended to curtail or affect the existing remedies of the employee against the third party. But the court said that it was doubtless a necessary conclusion that where an employee brings an action against a third person, without having duly evidenced his election to do so, he would not be entitled to any compensa- tion under the statute, even though he did not recover in such action the full amount to which he would have been entitled under the statute. Affirmed with costs. Lester v. Otis Elevator Co., — App. Div. (N. Y.), 155 N. T. Suppt 524 (1915), aff'g 9 N. C. C. A. 1263. 12 — Recovery of compensation as barring action against third person, 9 N. C. C. A. 1262-1264, note 90. 13 — Subrogation to remedies of em- ployee construed. — On or about July 20, 1914, Philip Magrino sustained injuries in a collision between his employer's truck, upon which he was riding, and one of defendant's street cars. The employee subsequently elected to take compensation under the workmen 's compensation law, and accordingly, pursuant to- section 29 of that act, as- signed his claim against the defendant to the plaintiff, the insurance corpora- tion liable for the payment of the com- pensation. As assignee the plaintiff brought this action. The trial court granted a nonsuit, for the sole reason that, in the opinion of the court, the plaintiff in an action of this character was entitled merely to be indemnified for the compensation paid under the law to the injured employee, plaintiff having waived any such recovery and insisted upon the right to recover the same damages which' the employee would have been entitled to if he had sued the defendant. In sustaining the trial justice the court, after quoting section 29 of the workmen 's compen- sation law, said: "The learned trial justice regarded the use of the word 'subrogation' by the legislature as con- trolling in the disposition made of the controversy. It is contended by the appellant that, while ordinarily the word 'subrogation,' in technical par- lance, connotes indemnification, the title of the section under consideration, being 'Subrogation to Remedies of Em- ployee,' indicates that subrogation is used in its primary sense of substitu- tion, so that the state or private insurer is, after election made to resort to the "act, put in the same place the employee would have been if he had not availed himself of the provisions of the statute and that the further provision that the ' cause of action ' shall- be assigned to the insurer carries with it the right to recover, under such assignment, all damages recoverable by the workman in the absence of an assignment. We do not consider this contention sound. ' ' ' Cause of action ' ' implies a right to bring an action, and some one who has a right to sue, and some one who may be lawfully sued. ' Patterson v. Patter- son, 59 N. Y. 574, 17 Am. Rep. 384. The clause, read in conjunction with the title of the section, does not neces- sarily import a right on the part of the insurer, under his assignment, to f24 New York Appendix. 1235 fund, if compensation be payable therefrom, and otherwise to the per- son 14 or association or corporation liable for the payment of such compensation, and if he elect to proceed against such other, the state is for purpose of indemnification only; and it follows that the extension of the same provision to individual or cor- porate insurers is subject to the same limitation, namely, the full indemnifi- cation of the insurer, and no more. To hold otherwise would be to construe the act as requiring repayment by the state to employers of surplus funds derived from the prosecution of negli- gence cases by the state as the abso- lute assignee of injured employees, and permitting the retention of the surplus obtained . in such cases by individual or corporate insurers. The statute surely does not contemplate the grant- ing to individual or corporate insurers of rights inconsistent with the rights vested in the state under like condi- tions and inconsistent with the general purpose of the statute to be so con- strued as to open the door for specu- lative profit to the insurer, through subsequent litigation. * * * The judgment should therefore be affirmed, with $25 costs." United States Fidel- ity & G. Co. v. New York Rys. Co., — App. Div. (N. Y.) — , 156 N. Y. Supp. 615 (1916). 14 — References to N. C. C. A. Indemnity, right of employer to re- cover from third person causing injury to workman, 5 N. C. C. A. 524, 803. Action toy employer for reimburse- ment against fellow-employees, causing injury to employee, 5 N. C. 0. A. 526. " Defenses in action toy employer against fellow-employees causing injury to employee, 5 N. C. C. A. 526. Recovery of costs in action by em- ployer for indemnity from person caus- ing injury, 5 N. C. C. A. 526. Notice by employer of claim of in- demnity from person causing injury, 5 N. C. C. A. 527. recover all the damages which the workman might recover if he elected to pursue his remedy against the third party tort-feasor, but only such recov- ery as is consistent with the purpose clearly defined in the title; i. e. the pur- pose of ' subrogation. ' Lester v. Ohio Elevator^ Co., 90 Misc. Rep. 649, 153 N. Y. Supp. 1058. Subrogation is de- fined in the Standard Dictionary as fol- lows: 'The succession or substitution of one person or thing by or for an- other; in law, the puttingl of a person (as a surety) who has paid the debt of another in the place of the creditor to whom he has paid it, so that he may use for his own indemnification all the rights and remedies that the creditor possessed as against the debtor.' " 'The insurer, upon paying to the assured the amount of a loss * * * is doubtless subrogated in a corre- sponding amount to the assured 's right of action against any other per- son responsible for the loss. St. Louis etc., R. Co. v. Commercial Union Ins. Co., 139 U. S. 223, 235, 11 Sup. Ct. 554, 557, 35 L. Ed. 154.' "The general purpose of the statute is to establish a system of state insur- ance of employees engaged in hazard- ous employment, and to provide in con- nection therewith a system of indem- nification of the state. That it does not contemplate an accumulation of surplus profits to be derived from as- , signments of causes of action for per- sonal injuries is made evident by an examination of the provision of sec- tions 95 to 97, both inclusive. * * * Construing section 29 in the light of the general purpose of the statute, it is evident, therefore, that the provi- sions for 'subrogation to remedies of employees,' and the assignment of the workmen's cause of action to the state, 1236 10 Negligence and Compensation Cases Annotated. H24 insurance fund, person or association or corporation, as the case may be, shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the com- pensation provided or estimated by this chapter for such case. Such a cause of action assigned to the state may be prosecuted or compromised by the commission. A compromise of any such cause of action by the workman or his dependents at an amount less than the compensation provided for by this chapter shall be made only with the written approval of the commission, if the deficiency of compensation would be payable from the state insurance fund, and otherwise with the written approval of the person, association or corporation liable to pay the same. IT 25. Revenues or benefits from other sources not to affect com- pensation. § 30. [As amended, Laws 1914, c. 316.] No benefits, savings or insur- ance of the injured employee, independent of the provisions of this chapter, shall be considered in determining the compensation or benefits to be paid under this chapter, except that, in case of the death of an employee of the state, a municipal corporation or any other politi- cal subdivision of the state, any benefit payable under a pension system which is not sustained in whole or in part by the contributions of the employee, may be applied toward the payment of the death benefit provided by this chapter. (Effective immediately.) 11 26. Agreement for contribution by employee void. § 31. No agreement by an employee to pay any portion of the premium paid by his employer to the state insurance fund or to contribute to a benefit fund or department maintained by such employer or to the cost of mutual insurance or other insurance, maintained for or carried for the purpose of providing compensation as herein required, shall be valid, and any employer who makes a deduction for such purpose from the wages or salary of any employee entitled to the benefits of this chapter shall be guilty of a misdemeanor. 11 27. Waiver agreements void. § 32. No agreement by an employee to waive 15 his right to compensa- tion under this chapter shall be valid. 15 — Exemption In contract of em- ployment as waiver of compensation, 9 N. O. C. A. 1265, note 92. Waiver of right to compensation by employee, Powley v. Vivian & Co., Inc. (N. Y. App. Div.), 10 N. 0. C. A. 835. Eeferences to N. C. 0. A. Waiver of rights by employee, valid- ity of provisions against, 1 N. C. 0. A. 558. Effect of agreement to accept less 1130 New York Appendix. 1237 H 28. Assignments ; exemptions. §33. Claims for compensation or benefits due under this chapter shall not be assigned," released " or commuted except as provided by this chapter, and shall be exempt from all claims of creditors and from levy, execution and attachment or other remedy for recovery or col- lection of a debt, which exemption may not be waived. Compensation and benefits shall be paid only to employees or their dependents. U29. Preferences. § 34. The right of compensation granted by this chapter shall have the same preference or lien without limit of amount against the assets of the employer as is now or hereafter may be allowed by law for a claim for unpaid wages for labor. Article 3. SECURITY FOR COMPENSATION. H 30. Security for payment of compensation. § 50. An employer shall secure compensation to his employees in one of the following ways : 1. By insuring and keeping insured the payment of such compensa- tion in the state fund, or than compensation fixed by act, 7 N. C. C. A. 807. 16 — Reference to N. C. C. A. Assignability of employer's right of action against third person causing in- jury to workman, 5 N. C. C, A. 803. 17 — Settlement and release from ad- ministrators as affecting right to com- pensation. — The deceased was employed as a conductor by a railroad company and was killed while in charge of a train which was made up of both inter- state and intrastate cars. The employer, apparently acting upon the supposition that the case was not compensable, entered into an agreement with the administrators of the estate of the de- ceased by which, on the payment of $800 which they received, the adminis- trators gave a full release from all liability growing out of the accident. The railroad company contended that the settlement and release was a bar to the claimants' right to compensa- tion. The commission held "that the release executed by the administrators of the deceased's estate had no effect as against the claimants; that in any event the claim which was settled by the payment of $800. and the taking of a release was entirely different from that which was presented here. It was a claim for damages and not a claim for compensation. The ultimate des- tination of the money received by the administrators might go in an entirely different direction from that in which the compensation if granted, would go. The money paid the administrators if not liable for decedent's debts, may, for aught that appears, be divided equally between the children of the deceased whereas, the compensation is not liable for debts (compensation laws, § 33) and is to go to the minor children under eighteen years of age only." 1238 10 Negligence and Compensation Cases Annotated. U 30 2. By insuring 18 and keeping insured the payment of such com- pensation with any stock corporation or mutual association authorized to transact the business of workmen's compensation insurance in this state. If insurance be so effected in such a corporation or mutual asso- ciation the employer shall forthwith file with the commission, in form prescribed by it, a notice specifying the name of such insurance corpora- tion or mutual association together with a copy of the contract or policy of insurance. [.4s amended, Laws 1914, c. 316.] By furnishing satisfactory proof to the commission of his financial ability to pay such compensation for himself, in which case the commission may, in its discretion, require the deposit with the commission of securities of the kind prescribed in section thirteen of the insurance law, in an amount to be determined by the commission, to secure his liability to pay the compensation pro- vided in this chapter. If an employer fail to comply with this section, he shall be liable to a penalty during which such failure continues of an amount equal to the pro rata premium which would have been payable for insurance in the state fund for such period of noncompliance to be recovered in an action brought by the commission. The commission may, in its direction, for good cause shown, remit any such penalty, provided the employer in default secure compensation as provided in this section. (Effective immediately.) 51 31. Posting of notice regarding compensation. § 51. Every employer who has complied with section fifty of this chapter shall post and maintain in a conspicuous place or places in and about his place or places of business typewritten or printed notices 19 in form prescribed by the commission, stating the fact that he has complied with all the rules and regulations of the commission and that he has secured the payment of compensation to his employees and their dependents in accordance with the provisions of this chapter. 20 19 — Reference to N. C. 0. A. Award of compensation was made in favor of the dependents as provided by the compensation law. Buell v. New York Cent. & H. R. R. Co., 6 N. Y. St. Dep. Rep. (No. 33, p. 78, 1915). Reference to N. C. C. A. Release by employee as affecting widow's right to compensation, 4 N. C. 0. A. 546n. 18 — Unconstitutionality of act, whether insured relieved from paying premium, 9 N. C. C. A. 1266, note 95. When election by employer presumed by notices posted, 9 N. C. C. A. 47, 48. 20— References to N. 0. C. A. Acceptance by employer, provisions as to, 7 N. C. C. A. 44, 47. Filing acceptance by employer, time of, 7 N. C. C. A. 44. Manner of acceptance by employer, 7 N. C. C. A. 44. Employees covered by acceptance, 7 N. C. C. A. 46: 3 N. C. C. A. 707. 1134 New York Appendix. 1239 f 32. Effect of failure to secure compensation. \ § 52. Failure to secure the payment of compensation shall have the effect of enabling the injured employee or his dependents to maintain an action for damages in the courts, as prescribed by section eleven of this chapter. 21 " 22 U 33. Release from all liability. § 53. An employer securing the payment of compensation by con- tributing premiums to the state fund shall thereby become relieved from all liability for personal injuries or death sustained by his em- ployees, and the persons entitled to compensation under this chapter shall have recourse therefor only to the state fund and not to the em- ployer. An employer shall not otherwise be relieved from the liability for compensation prescribed by this chapter except by the payment thereof by himself or his insurance carrier. H 34. The insurance contract. § 54. 1. Right of recourse to the insurance carrier. Every policy of insurance covering the liability of the employer for compensation issued by a stock company or by a mutual association authorized to transact workmen's compensation insurance in this state shall contain a provision setting forth the right of the commission to enforce in the name of the people of th^e state of New York for the benefit of the person entitled to the compensation insured by the policy either by filing a separate application or by making the insurance carrier a party 2S to the original application, the liability of the insurance carrier in whole or in part for the payment of such compensation ; provided, however, that payment in whole or in part of such compensation by either the employer or the insurance carrier shall to the extent thereof be a bar to the recovery against the other of the amount so paid. 2. Knowledge and jurisdiction of the employer extended to cover the insurance carrier. Every such policy shall contain a provision that, as between the employee and the insurance carrier, the notice to or Rejection by employer, provisions as to, 7 N. C. C. A. 44, 49. Evidence of rejection of act toy em- ployer, 8 N. C. C. A. 652, 653; 5 N. 0. C. A. 419. 21-22 — References to N. C. C. A. Compensation act, common-law ac- tions where employer fails or refuses to comply with, 8 N. C. C. A. 649, 670. Common-law defenses available where employer has failed or refused to accept 10 N. C. C. A. N. T. App.— 7 compensation act, 8 N. C. C. A. 659-661. Burden of pleading and proving com- pliance by employer with requirements of act, 5 N. C. C. A. 557. Pleading failure of employer to con- " tribute to liability fund, 4 N. C. C. A. 836. 23 — Reference to N. C. C. A. Insurer as party in interest, 4 N. C. C. A. 60. 1240 10 Negligence and Compensation Cases Annotated. H 34 knowledge of the occurrence of the injury on the part of the employer shall be deemed notice or knowledge, as the case may be, on the part of the insurance carrier; that jurisdiction of the employer shall, for the purpose of this chapter, be jurisdiction of the insurance carrier and that the insurance carrier shall in all things be bound by and subject to the orders, findings, decisions or awards rendered against the employer for the payment of compensation under the provisions of this chapter. 3. Insolvency of employer does not release the insurance carrier. Every such policy shall contain a provision to the effect that the in- solvency or bankruptcy of the employer shall not relieve the insurance carrier from the payment of compensation for injuries or death sustained by an employee during the life of such policy. 4. Limitation of indemnity agreements. Every contract or agree- ment of an employer the purpose of which is to indemnify him from loss or damage on account of the injury of an employee by accidental means, or on account of the negligence of such employer or his officer, agent or servant, shall be absolutely void unless it shall also cover liability for the payment of the compensation provided for by this chapter. 5. Cancellation of insurance contracts. No contract of insurance issued by a stock company or mutual association against liability arising under this chapter shall be cancelled within the time limited in such con- tract for its expiration until at least ten days after notice of intention to cancel such contract, on a date specified in such notice, 24 shall be filed 24 — Cancellation of Insurance policy. — This was a claim brought by the widow on behalf of herself and children for the death of an employee growing out of an accident which occurred on March 24, 1915. The insurance carrier defended on the ground that the policy of insurance which was issued on July 20, 1914, to run until July 20, 1915, was cancelled by a letter sent on October 1, 1914, to become effective on October 13, 1914. The policy of insurance was secured and brought to the insured by one Hermerlin, an insurance broker. Their post office address and place of business was given as 964 Belmont Av- enue. On September 11, 1914, Hermer- lin notified the insurance c.ompany that the insured had not paid the premium and asked them to cancel the policy, also stating that he could not locate the insured. Pursuant to this notification the insurance carrier on October 1, 1914, sent a notice of cancellation to become effective October 13, 1914, and from that time the risk was not carried by the insurance company on their books. On March 27, 1915, the insured called at the office of Hermerlin and paid the premium on the policy and stated that he told Hermerlin that there had been an accident on March 24, 1915. He also testified that he only paid the balance of $3.00 due on the policy and that he had previously paid $10.00 in August, 1914. Hermerlin de- nied both of these statements and tes- tified that the whole premium of $13.00 was paid April 13, 1915, and that he asked the insured if there had been a loss and was told there had not. Her- merlin thereupon sent the premium to 1134 New York Appendix. 1241 in the office of the commission and also served on the employer. Such notice shall be served on the employer by delivering it to him or by sending it by mail, by registered letter, addressed to the employer at his or its last known place of residence ; provided that, . if the employer the insurance carrier and the policy was reinstated as of April 7, 1915, without knowing that there had been a loss. The notice of cancellation was mailed to the address given in the policy by registered letter and a copy sent to the commission. The insured claimed that he had never received the notice. The insurance carrier received no notice from the post office that the letter had not been delivered and was ignorant of that fact. In holding that the policy had been legally cancelled the commis- sion was inclined to believe the testi- mony of Hermerlin and discredit the . testimony of the insured, also that if Hermerlin had made a mistake in giv- ing the insurance carrier the wrong address, it was the mistake of the em- ployer's agent and not that of the insurance carrier; that the mailing of the notice by registered mail to the assured at the address given in the policy of insurance, which address was given by Hermerlin, the agent of the assured, was a sufficient cancellation of the policy; and that, therefore, the assured was not covered by the policy in question from the thirteenth of Oc- tober, 1914, when the notice of can- cellation was to become effective, to the seventh day of April, 1915. Compen- sation was, therefore, denied as against the insurance company and an award made against the employers. Bloom v. Tilin, 1 St. Ind. Comm. Bull. (No. 2, 1915) 12, 5 N. Y. St. Dep. Rep. 441 (1915). What constitutes proper notice of cancellation of policy of insurance — The question at issue was whether the policy of insurance issued to the em- ployer on July 25, 1914, and running to July 25, 1915, was properly cancelled by a notice mailed on October 1, 1914, to become effective October 10, 1914. Injuries to two employees were in- volved. The only difference in the cases was that the accident in the one case (McCaffery), occurred on June 15, 1915, and in the other case (Gibbons), on July 19, 1915. One Oppenheim, an in- surance broker, but not the agent of the Fidelity and Deposit Company of Mary- land, which issued the policy in this ease, secured from the Trager Contract- ing Company the data for the policy and gave the information to Brinker- hoff Jordon Company who were agents for the Fidelity and Deposit Company. Oppenheim gave 243 W. 46th Street as the address of the Trager Contracting Company but through the mistake of the Brinkerhoff Jordon Company it was written into the policy as 245 W. 45th Street, which mistake was not discov- ered by anyone. In due course of time the Trager Contracting Company paid the premium on the policy to the Brinkerhoff Jordon Company, but through some confusion in the arrange- ments between the Fidelity and Deposit Company and the Brinkerhoff Jordon Company in the settlement of their accounts, the latter company neglected to pay over the premium to the insur- ance carrier. The insurance carrier supposing the premium had not been paid sent a notice of cancellation to the Trager Contracting Company dated October 1, 1914, to become effective October 10, 1914, but this letter being directed to 245 W. 45th Street, the ad- dress named in the policy, did not reach Trager Contracting Company whose ad- dress was 243 W. 46th Street. The insurance carrier knew that this letter did not reach the insured, but no fur- ther effort to secure the insured's cor- rect post office address was made. In 1242 10 Negligence and Compensation Cases Annotated. H 34 be a partnership, then such notice may be so given to any one of the partners, and if the employer be a corporation, then the notice may be given to any agent or officer of the corporation upon whom legal process may be served. the cancellation notice sent, the insur- ance carrier, instead of offering to re- turn any portion of the premium, stated that inasmuch as nothing had been paid on the premium, no adjustment was to be made. After the accident to McCaffery and on July 12, 1915, the insurance carrier who had never re- ceived any of the money from its agent, directed them to return the premium to the insured and a letter on or about that date was mailed to Oppenheim but it never reached him. The decision of Commissioner Lyon was as fol- lows: "In my opinion the insurance carrier has not shown that the policy was legally cancelled. I do not think the notice of cancellation was sufficient under the statute even if it had been received by the Trager Con- tracting Company, for two reasons: First. Because the period when it was to become effective was not ten days after the date when it was mailed. Subdivision 5 of section 54 of the com- pensation law provides as follows: 'No contract of insurance issued by a stock company or mutual association against liabilities arising under this chapter shall be cancelled within the time lim- ited in such contract for its expiration until at least ten days after notice of intention to cancel such contract, on a date specified in such notice, shall be filed in the office of the commission and also served on the employer.' Section 20 of the General Construction Law pro- vides: 'A number of days specified as a period from a certain date within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made.' It seems to me very clear that under these two stat- utes a notice on the first of the month to be effective on the tenth is not suffi- cient notice. Second. It seems to be conceded by the carrier that to make a cancellation notice effective either the unearned portion of the premium must be returned or an offer to return made. In the present case no offer to return was made and the fact that it was not made is due to the fault of either the insurance carrier or its agent, for the agent certainly had the premium, or a substantial part of it, and the mistake made in not turning it over to the com- pany is certainly not to be used against the Trager Contracting Company. It is probably true that the proper mailing of the notice of cancellation would be sufficient to cancel the policy, whether it was received through the post office or not. In this case, however, the notice was not mailed to the correct address and the fact that the wrong address was in the policy is, on the evidence, at least as much the fault of the insurance carrier as of the insured. It is prob- ably the duty of a person insured under a policy to look it through and find whether there are any errors in it, but it may be doubted whether this is any more incumbent upon the insured than it is the duty upon the insurer of put- ting the correct address in when it is given him as was done in the present ease. Furthermore, I think it was the duty of the insurance company when they were apprised of the fact that their cancellation notice had not been received by the insured, to make some effort to find his proper address and give him the cancellation notice. In my opinion compensation must be granted in both cases." Award was made in both cases. All concurred except Mitchell, Commissioner, not vot- H35 New Yobk Appendix. 1243 Article 4. STATE WORKMEN'S COMPENSATION COMMISSION. II 35. Industrial commission created. § 40. [Laws 1915, c. 674.] There shall be a department of labor, the head of which shall be the industrial commission. 25 The commission shall consist of five commissioners appointed by the governor by and with the advice and consent of the senate, one of whom shall be designated by the governor as chairman. Upon the appointment of a successor to the chairman the governor shall designate such successor or any member of the commission as chairman thereof. The term of office of each commissioner shall be six years, except that the term of the commissioners first appointed shall expire, one on January first, nineteen hundred and seventeen, one on January first, nineteen hundred and eighteen, one on January firsts nineteen hundred and nineteen, one on January first, nineteen hundred and twenty- and one on January first, nineteen hundred and twenty-one. Their successors shall be appointed for full terms of six years from the expiration of the terms of their predecessors in office. If a vacancy occurs otherwise than by expiration of a term, it shall be filled by appointment for the unexpired term. Each commis- sioner shall receive an annual salary of eight thousand dollars, and shall devote his entire time to the duties of his office. Not more than three commissioners shall be members of the same political party. The governor may remove a commissioner for inefficiency, neglect of duty or misconduct in office, giving him a copy of the charges and an opportunity of being publicly heard in person or by counsel on not less than ten days' notice. If the commissioner be removed, the governor shall file in the /office of the secretary of state a complete record of his proceedings with regard to such removal and his findings thereon. The commission may adopt a seal and require that it be used for the authentication of the commission's orders and proceedings and for such other purposes as the commission may prescribe. The court shall take ing. McCaffrey v. Trager Contracting Co., 1 St. Ind. Comm. Bull. (No. 2, 1915) 11, 5 N. Y. St. Dep. Eep. 434 (1915). 25 — References to N. 0. 0. A. Boards for administration of statute, creation and powers, 4 N. C. C. A. 149, 150; 3 N. 0. O. A. 651, 653; 1 N. 0. 0. A. 30. Judicial functions, whether exercised by state boards when compensation based upon state insurance fund, 10 N. C. C. A. 47-61. Due process of law, whether state boards exercise judicial functions in vi- olation of clause as to, 10 N. 0. C. A. 48-60. Equal protection of laws, whether state boards exercise judicial functions in violation of clause as to, 10 N. C. C. A. 60-61. 1244 10 Negligence and Compensation Cases Annotated. H 36 judicial notice of such seal and of the signatures of the chairman and secretary of the commission. (In lieu of section 60 of Laws 1914, c. 41.) f 36. Workmen's compensation commission abolished. §4. [Laws 1915, c. 674.] The state workmen's compensation com- mission created as provided in section sixty of the workmen's compensa- tion law is hereby abolished, and the terms of office of the members of such commission then in office shall cease on the appointment and qualification of the members of the industrial commission. All the powers, duties, obligations and liabilities conferred or imposed by law upon the workmen's compensation commission by the workmen's com- pensation law or any other statute are hereby conferred and imposed upon the state industrial commission and such commission may exercise and perform such powers and duties and shall be subject to such obligations and liabilities in the same manner, to the same extent and \ with the same force and effeet as would have been the case had the workmen's compensation commission been continued in office. For the purpose of exercising such powers, performing such duties, being sub- jected to such obligations and liabilities, the state industrial commission shall be deemed to be a continuation of such workmen's compensation commission. The offices of secretary to the workmen's compensation commission and of the deputies appointed by the workmen's compensa- tion commission, are hereby abolished; and the powers and duties of such officers then in office shall cease upon the appointment and qualifi- cation of the members of the industrial commission. n 37. Rules and regulations continued ; pending actions or proceedings. § 6. [Laws 1915, c. 674.] The rules, regulations and orders of the commissioner of labor, the industrial board, or the workmen's compensa- tion commission in force when this act takes effect enacted or promulgated pursuant to law are continued in full force and shall be operative until modified, superseded or repealed by the industrial commission. This act shall not affect pending cases or proceedings, civil or criminal, brought by or against the commissioner of labor or the workmen's compensation commission. All proceedings, hearings, investigations and other matters pending before the commissioner of labor, the industrial board, or the workmen's compensation commission shall be continued and brought to a final determination before the industrial commission in the same manner as though the commissioner of labor, the industrial board an d the workmen's compensation commission had been continued in office. Any award or determination made by the workmen's compensation com- mission prior to the taking effect of this act shall have the same force and New York Appendix. 1245 effect as though the workmen's compensation commission had been con- tinued in office. U 38. Construction. ^ § 7. [Laws 1915, c. 674.] Whenever the term "department of labor," commissioner of labor," "industrial board," or "workmen's compen- sation commission" occurs in any law or in any rule or regulation made in pursuance of law,. or whenever in any law reference is made to such department, commissioner, board, commission or officer, such term or reference shall be deemed to mean the industrial commission as estab- lished by the act. IT 39. Expenses. § 62. [As amended, Laws 1915, c. 674.] The commission may make the necessary expenditure to obtain statistical and other information to establish classifications of employments with respect to hazards and risks. The expenses of the commission, including the premiums to be paid by the state treasurer for the bond to be furnished by him, shall be paid out of the state treasury upon vouchers signed by at least two commissioners. 1140. Office. §63. The commission shall keep and maintain its principal office in the city of Albany, in rooms in the capitol assigned by the trustees of public buildings. The office shall be supplied with necessary office furni- ture, supplies, books, maps, stationery, telephone connections and other necessary appliances, at the expense of the state, payable in the same manner as other expenses of the commission. 11 41. Sessions of commission. § 64. The commission shall be in continuous session and open for the transaction of business during all business hours of every day excepting Sundays and legal holidays. All sessions shall be open to the public and may be adjourned, upon entry thereof in its records, without further notice. Whenever convenience of parties will be pro- moted or delay and expense prevented, the commission may hold sessions in cities other than the city of Albany. A party may appear before such commission and be heard in person or by attorney. Every vote and official act of the commission shall be entered of record, and the records shall contain a record of each case considered, and the award, decision or order made with respect thereto, and all voting shall be by the calling of each commissioner's name by the secretary and each vote shall be recorded as cast. A majority of the commission shall 1246 10 Negligence and Compensation Cases Annotated. H 41 constitute a quorum. A vacancy shall not impair the right of the remaining commissioners to exercise all the powers of the full commis- sion so long as a majority remains. V 42. Powers of individual commissioners and deputy commissioners. § 65. Any investigation, inquiry or hearing which the commission is authorized to hold or undertake may be held or taken by or before any commissioner or deputy commissioner, and the award, decision or order of a commissioner or deputy commissioner, when approved and con- firmed by the commission and ordered filed in its office, shall be deemed to be the award, decision or order of the commission. Each commissioner and deputy shall, for the purposes of this chapter, have power to ad minister oaths, certify to official acts,, take depositions, issue subpoenas, compel the attendance of witnesses and the production of books, accounts, papers, records, documents and testimony. The commission may authorize any deputy to conduct any such investigation, inquiry or hearing, in which case he shall have the power of a commissioner in respect thereof. U 43. Powers and duties of secretary. § 66. The secretary of the commission shall : 1. Maintain a full and true record of all proceedings of the com- mission, of all documents or papers ordered filed by the commission, of decisions or orders made by a commissioner or deputy commissioner, and of all decisions or orders made by the commission or approved and confirmed by it and ordered filed, and he shall be responsible to the commission for the safe custody and preservation of all such documents at its office; 2. Have power to administer oaths in all parts of the state, so far as the exercise of such power is properly incident to the performance of his duty or that of the commission; 3. Designate, from time to time, with the approval of the commission, one of the clerks appointed by the commission to exercise the powers and duties of the secretary during his absence ; 4. Under the direction of the commission, have general charge of its office, superintend its clerical business, and perform such other duties as the commission may prescribe. 1T44. Rules. § 67. The commission shall adopt reasonable rules, not inconsistent with this chapter, regulating and providing for 1. The kind and character of notices, and the service thereof, in case of accident and injury to employes; H46 New York Appendix. 1247 2. The nature and extent of the proofs and evidence, and the method of taking and furnishing the same, to establish the right to compen- sation ; 3. The forms of application for those claiming to be entitled to com- pensation ; 4. The method of making investigations, physical examinations and inspections ; 5. The time within which adjudications and awards shall be made ; 6. The conduct of hearings, investigations and inquiries; , 7. The giving of undertakings by all subordinates who are empowered to receive and disburse moneys, to be approved by the attorney-general as to form and by the comptroller as to sufficiency. 8. Carrying in,to effect the provisions of this chapter ; 9. The collection, maintenance and disbursement of the state insur- ance fund. IT 45. Technical rules of evidence or procedure not required. § 68. The commission or a commissioner or deputy commissioner in making an investigation or inquiry or conducting a hearing shall not be bound by common law or statutory rules of evidence 26 or by technical or formal rules or procedure, except as provided by this chapter; but may make such investigation or inquiry *or conduct such hearing in such manner as to ascertain the substantial rights of the parties. U46. Issue of subpoena; penalty for failure to obey. § 69. A subpoena shall be signed and issued by a commissioner, a deputy commissioner or by the secretary of the commission and may be served by any person of full age in the same manner as a subpoena issued out of a court of record. If a person fail, without reasonable cause, to attend in obedience to a subpoena, or to be sworn or examined or answer a question or produce a book or paper, or to subscribe and 26 — References to N. C. C. A. Admissibility of declarations of de- cedent in proceedings before board, 4 N. 6. C. A. 517; 5 N. C. C. A. 917. Hearsay evidence as to cause of in- jury, when admission not reversible er- ror, 5 N. C. C. A. 917. Hearsay evidence, admissibility of, 10 N. 0. C. A. 552-556. Hearsay evidence, findings of facts on under compensation acts, 10 KT. C. 0. A. 545-561. Statements of deceased, admissibility of, 10 N. C. C. A. 556-559. Statistical report as evidence in hear- ing before commission, 5 N. C. C. A. 822. Testimony taken ex parte by commis- sion, when inadmissible, 5 N. C. C. A 822. Additional evidence, powers as to, 3 N. C. C. A. 692n. 1248 10 Negligence and Compensation Cases Annotated. H 47 swear to his deposition after it has been correctly reduced to writing, he shall be guilty of a misdemeanor. U 47. Recalcitrant witnesses punishable as for contempt. § 70. If a person in attendance before the commission or a commis- sioner or deputy commissioner refuses, without reasonable cause, to be examined, or to answer a legal and pertinent question or to produce a book or paper, when ordered so to do by the commission or a commis- sioner or deputy commissioner, the commission may apply to a justice of the supreme court upon proof by affidavit of the facts for an order returnable in not less than two nor more than five days directing such person to show cause before the justice who made the order, or any other justice of the supreme court, why he should not be committed to jail. Upon the return of such order the justice shall examine under oath such person and give him an opportunity to be heard; and if the justice determine that he has refused without reasonable cause or legal excuse to be examined or to answer a legal and pertinent question, or to produce a book or paper which he was ordered to bring, he may forth- with, by warrant, commit the offender to jail, there to remain until he submits to do the act which he was so required to do or is discharged according to law. i! 48. Fees and mileage of witnesses. § 71. Each witness who appears in obedience to a subpoena before the commission or a commissioner or deputy commissioner, or person employed by the commission to obtain the required infermation, shall receive for his attendance the fees and mileage provided for witnesses in civil cases in the supreme court, which shall be audited and paid from the state treasury in the same manner as other expenses of the commis- sion. A witness subpoenaed at the instance of a party other than the commission, a commissioner, deputy commissioner or person acting under the authority of the commission shall be entitled to fees or compensation from the state treasury, if the commission certify that his testimony was material to the matter investigated, but not otherwise. 1149. Depositions. > § 72. The commission may cause depositions of witness residing within or without the state to be taken in the manner prescribed by law for like depositions in civil actions in the supreme court. If 50. Transcript of stenographer's minutes; effect as evidence. § 73. A transcribed copy of the testimony, evidence and procedure or of a specific part thereof, or of the testimony of a particular witness or of a specific part thereof, on any investigation, by a stenographer n54 New Yoek Appendix. 1249 appointed by the commission, being certified by such stenographer to be a true and correct transcript thereof and to have been carefully compared by him with his original notes, may be received in evidence by the com- mission with the same effect as if such stenographer were present and testified to the facts so certified, and a copy of such transcript shall be furnished on demand to any party upon payment of the fee provided for a transcript of similar minutes in the supreme court. IT 51. Jurisdiction of commission to be continuing. § 74. The power and jurisdiction of the commission over each ease shall be continuing, and it may, from time to time, make such modifica- tion or change with respect to former findings or orders relating thereto, as in its opinion may be just. U 52. Report of commission. § 75. Annually on or before the first day of February, the commission shall make a report to the legislature, which shall include a. statement of the number of awards made by it and the causes of the accidents leading to the injuries for which the awards were made, a detailed statement of the expenses of the commission, the condition of the state insurance fund, together with any other matter which the commission deems proper to report to the legislature including any recommendations it may desire to make. 11 53. Commission to furnish blank forms. § 76. The commission shall prepare and cause to be distributed so that the same may be readily available blank forms of application for , compensation, notice to employers, proofs of injury or death, of medical or other attendance or treatment, of employment and wage earnings, and for such other purposes as may be required. Insured employers shall constantly keep on hand a sufficient supply of such blanks. Article 5. STATE INSURANCE FUND. U 54. Creation of state fund. § 90. There is hereby created a fund to be known as "the state insur- ance fund," 27 for the purpose of insuring employers against liability 27 Compulsory state Insurance fund, State insurance; attributes, limita- principles of constitutional law under- tions, and scope of taxing power, 10 lying, 10 N. C. C. A. 31-68. N. C. C. A. 11-25. Compulsory state Insurance fund, public purpose and limitations under- lying, 10 N. C. C. A. 25-29. 1250 10 Negligence and Compensation Cases Annotated. H 54 under this chapter and of assuring to the persons entitled thereto the compensation provided by this chapter. Such fund shall consist of all premiums received and paid into the fund, of property and securities acquired by and through the use of moneys belonging to the fund and of interest earned upon moneys belonging to the fund . and deposited or invested as herein provided. Such fund shall be administered by the commission without liability on the part of the state beyond the amount of such fund. Such fund shall be applicable to the payment of losses sustained on account of insurance and to the payment of ex- penses in the manner provided in this chapter. U 55. State treasurer custodian of fund. § 91. The state treasurer shall be the custodian of the state insurance fund; and all disbursements therefrom shall be paid by him upon vouchers authorized by the commission and signed by any two members thereof. The state treasurer shall give a separate and additional bond in an amount to be fixed by the governor and with sureties approved by the state comptroller conditioned for the faithful performance of his duty as custodian of the state fund. The state treasurer may deposit any portion of the state fund not needed for immediate use, in the manner and subject to all the provisions of law respecting the deposit of other state funds by him. Interest earned by such portion of the state insurance fund deposited by the state treasurer shall be collected by him and placed to the credit of the fund. 11 56. Surplus and reserve. § 92. Ten per centum of the premiums collected from employers insured in the fund shall be set aside by the commission for the creation of a surplus until such surplus shall amount to the sum of one hundred thousand dollars, and thereafter five per centum of such premiums, until such time as in the judgment of the commission such surplus shall be sufficiently large to cover the catastrophe hazard. The commission shall also set up and maintain a reserve adequate to meet anticipated losses and carry all claims and policies to maturity. U 57. Investment of surplus or reserve. § 93. The commission may, pursuant to a resolution of the commission approved by the comptroller, invest any of the surplus or reserve funds belonging to the state insurance fund in the same securities and invest- ments authorized for investment by savings banks. All such securities or evidences of indebtedness shall be placed in the hands of the state treasurer who shall be" the custodian thereof. He shall collect the prin- cipal and interest thereof, when due, and pay the same into the state 1159 New York Appendix. 1251 insurance fund. The state treasurer shall pay all vouchers drawn on the state insurance fund for the making of such investments when signed by two members of the commission, upon delivery of such securities or evidences of indebtedness to him, when there is attached to such vouchers a certified copy of the resolution of the commission authorizing the invest- ment. The commission may, upon like resolution approved by the comp- troller, sell any of such securities. II 58. Administration expense. § 94. The entire expense of administering the state insurance fund shall be paid in the first instance by the state, out of moneys appropriated therefor. In the month of January, nineteen hundred and eighteen, and annually thereafter in such month, the commission shall ascertain the just amount incurred by the commission during the preceding calendar year, in the administration of the state insurance fund exclusive of the expense for the examination, determination and payment of claims, and shall refund such amount to the state treasury. If there be employees of the commission other than the commissioners themselves and the- secretary whose time is devoted partly to the general work of the com- mission and partly to the work of the state insurance fund, and in case there is other expense which is incurred jointly on behalf of the general work of the commission and the state insurance fund, an equitable appor- tionment of the expense shall be made for such purpose and the part thereof which is applicable to the state insurance fund shall be charge- able thereto. As soon as practicable after December thirty-one, nineteen hundred and seventeen, and annually thereafter, the commission shall calculate the total administrative expense incurred during the preceding calendar year in Connection with the examination, determination and payment of claims and the percentage which this expense bore to the total compensation payments made during that year. The percentage so calculated and determined shall be assessed against the insurance carriers including the state fund as an addition to the payments required from them in the settlement of claims during the year immediately following, and the amounts so secured shall be transferred to the state treasury to reimburse it for this portion of the expense of administering this chapter. 17 59. Classification of risks and adjustment of premiums. § 95. Employments coming under the provisions of this chapter shall be divided for the purposes of the state fund, into the groups set forth in section two of this chapter. Separate accounts shall be kept of the amounts collected and expended in respect to each such group for con- venience in determining equitable rates; but for the purpose of paying 1252 10 Negligence and Compensation Cases Annotated. *i 59 compensation the state fund shall be deemed one and indivisible. The commission shall have power to rearrange any of the groups set forth in section two by withdrawing any employment embraced in it and trans- ferring it wholly or in part to any other group, and from such employ- ments to set up new groups at its discretion. The commission shall determine the hazards of the different classes composing each group and fix the rates of premiums therefor based upon the total payroll and number of employees in each of such classes of employment at the lowest possible rate consistent with the maintenance of a solvent state insurance fund and the creation of a reasonable surplus and reserve ; and for such purpose may adopt a system of schedule rating in such a manner as to take account of the peculiar hazard of each individual risk. '. 60. Associations for accident prevention. § 96. The employers in any of the groups described in section two or established by the commission may with the approval of the commission form themselves into an association for accident prevention, and may make rules for that purpose. If the commission is of the opinion that an association so formed sufficiently represents the employers in such group, it may approve such rules, and when so approved and approved by the industrial board of the labor department they shall be binding on all employers in such group. If such an approval association appoint an inspector or expert for the purpose of accident prevention, the com- mission may at its discretion provide in whole or in part for the payment of the remuneration and expenses of such inspector or expert, such pay- ment to be charged in the accounting to such group. Every such approved association may make recommendations to the commission con- cerning the fixing of premiums for classes of hazards, and for individual risks within such group. 11 61. Requirements in classifying employment and fixing and adjusting premium rates. § 97. The following requirements shall be observed in classifying employments and fixing and adjusting premium rates : 1. The commission shall keep an accurate account of the money paid in premiums by each of the several classes of employments or industries, and the disbursements on account of injuries and deaths of employees thereof, including the setting up of reserves adequate to meet anticipated losses and to carry the claims to 'maturity, and also, an account of the money received from each individual employer and the amount disbursed from the state insurance fund on account of injuries and death of the employees of such employer, including the reserves so set up ; 11 61 New York Appendix. 1253 2. On January first, nineteen hundred and fifteen, and every fifth yea* thereafter, and at such other times as the commission, in its discretion, may determine, a readjustment of the rate shall be made for each of the several groups of employment or industries and of each hazard class therein, which, in the judgment of the commission, shall have developed an average loss ratio, in accordance with the experience of the com- mission in the administration of the law as shown by the accounts kept as provided herein; 3. If any such accounting show an aggregate balance (deemed by the commission to be safely and properly divisible) remaining to the credit of any class of employment or industry, after the amount required shall have been credited to the surplus and' reserve funds and after the payment of all awards for injury or death lawfully chargeable against the same, the commission may in its discretion credit to each individual member of such group, who shall have been a subscriber to the state insurance fund for a period of six months or more prior to the time of such readjustment, and whose premium or premiums exceed the amount of the disbursements from the fund on account of injuries or death of his employees during such period, on the instalment or instalments of premiums next due from him such proportion of such balance as the amount of his prior paid premiums sustains to the whole amount of such premiums paid by the group to which he belongs since the last readjustment of rates ; 4. If the amount of premiums collected from any employer at the beginning of any period of six months is ascertained and calculated by using the estimated expenditure of wages for the period of time covered by such premium payment as a basis, an adjustment of the amount of such premium shall be made at the end of such six months, and the actual amount of such premium shall be determined in accordance with the amount of the actual expenditure of wages for such period; and, if such wage expenditure for such period is less than the amount on which such estimated premium was collected, such employer shall be entitled ■to receive a refund from the state insurance fund of the difference be- tween the amount so paid by him and the amount so found to be actually due, or to have the amount of such difference credited on succeeding premium payments, at his option; and if such actual premium, when so ascertained, exceeds in amount a premium so paid bV such employer at the beginning of such six months, such employer shall immediately upon being , advised of the true amount of such premium due, forthwith pay to the treasurer of the state an amount equal to the difference between the amount actually found to be due and the amount paid by him at the beginning of such six months' period. 1254 10 Negligence and Compensation Cases Annotated. H 62 n 62. Time of payment of premiums. § 98. Except as otherwise provided in this chapter, all premiums shall be paid by every employer into the state insurance fund on or before July first, nineteen hundred and fourteen, and semi-annually thereafter, or at such other time or times as may be prescribed by the commission. The commission shall mail a receipt for the same to the employer and place the same to the credit of the state insurance fund in the custody of the state treasurer. 28 IT 63. Action for collection in case of default. § 99. If an employer shall default in any payment required to be made by him to the state insurance fund, the amount due from him shall be collected by civil action against him in the name of the people of the state of New York, and it shall be the duty of the commission on the first Monday of each month after July first, nineteen hundred and fourteen, to certify to the attorney-general of the state the names and residences, or places of business, of all employers known to the commis- sion to be in default for such payment or payments for a longer period than five days and the amount due from such employer, and it shall then be the duty of the attorney-general forthwith to bring or cause to be brought against each such employer a civil action in the proper court for the collection of such amount so due, and the same' when collected, shall be paid into the state insurance fund, and such -employer's compliance with the provisions of this chapter requiring payments to be made to the state insurance fund shall date from the time of the payment of said money so collected as aforesaid to the state treasurer for credit to the state insurance fund. II 64. Withdrawal from fund. § 100. Any employer may, upon complying with subdivision two or three of section fifty of this chapter, withdraw from the fund by turning in his insurance contract for cancellation, provided he is not in arrears for premiums due the fund and has given to the commission written notice of his intention to withdraw within thirty days before the expira- tion of the period for which he has elected to insure in the fund; pro- vided that in case any employer so withdraws, his liability to assessments shall, notwithstanding such withdrawal, continue for one year after the date of such withdrawal as against all liabilities for such compensation accruing prior to such withdrawal. 28 — Insurance fund, right of state to create and compel contribution to, 10 N. C. C. A. 11-29. Contribution to state insurance fund, origin of public purpose requiring, 10 N. C. C. A. 25-29. 11 70 N EW York Appendix. 1255 IT 65. Audit of payrolls. § 101. Every employer who is insured in the state insurance fund shall keep a true and accurate record of the number of his employees and the wages paid by him, and shall furnish to the commission, upon demand, a sworn statement of the same. Such record shall be open to inspection at any time and as often as the commission shall require to verify the number of employees and the amount of the payroll. f 66. Falsification of payroll. § 102. An employer who shall wilfully misrepresent the amount of the payroll upon which the premiums chargeable by the state insurance fund is to be based shall be liable to the state in ten times the amount of the difference between the premiums paid and the amount the em- ployer should have paid had his payroll been correctly computed; and the liability to the state under this section shall be enforced in a civil action in the name of the state insurance fund, and any amount so collected shall become a part of such fund. H 67. Wilful misrepresentation. § 103. Any person who wilfully misrepresents any fact in order to obtain insurance in the state insurance fund at less than the proper rate for such insurance, or in order to obtain payment out of such fund, shall be guilty of a misdemeanor. 1168. Inspections. § 104. The commission shall have the right to inspect the plants and establishments of employers insured in the state insurance fund ; and the inspectors designated by the commission shall have free access to such premises during regular working hours. U 69. Disclosures prohibited. § 105. Information acquired by the commission or its officers or em- ployees from employers or employees pursuant to this chapter shall not be opened [open] to public inspection, and any officer or employee of the commission who, without authority of the commission or pursuant to its rules or as otherwise required by law shall disclose the same shall be guilty of a misdemeanor. Article 6. miscellaneous provisions. H 70. Penalties applicable to expenses of commission. § 110. All penalties imposed by this chapter shall be applicable to the expenses of the commission. When collected by the commission such 10 N. C. C. A. N. Y. App.— 8 1256 10 Negligence and Compensation Cases Annotated. U 71 penalties shall be paid into the state treasury and be thereafter appro- priated by the legislature for the purposes prescribed by this section. U 71. Record and report of injuries by employers. § 111. Every employer shall keep a record of all injuries, fatal or otherwise, received by his employees in the course of their employment. Within ten days after the occurrence of an accident resulting in personal injury a report thereof shall be made in writing by the employer to the commission upon blanks to be procured from the commission for that purpose. Such report shall state the name and nature of the busi- ness of the employer, the location of his establishment or place of work, the name, address and occupation of the injured employee, the time, nature and cause of the injury and such other information as may be required by the commission. An employer who refuses or neglects to make a report as required by this section shall be guilty of a mis- demeanor, punishable by a fine of not more than five hundred dollars. If 72. Information to be furnished by employer. § 112. Every employer shall furnish the commission, upon request, any information required by it to carry out the provisions of this chapter. The commission, a commissioner, deputy commissioner, or any person deputized by the commission for that purpose, may examine under oath any employer, officer, agent or employee. An employer or an employee receiving from the commission a blank with directions to file the same shall cause the same to be properly filled out so as to answer fully and correctly all questions therein, or if unable to do so, shall give good and sufficient reasons for such failure. Answers to such questions shall be ' verified under oath and returned to the commission within the period fixed by the commission therefor. H 73. Inspection of records of employers. § 113. All books, records and payrolls of the employers showing or reflecting in any way upon the amount of wage expenditures of such employers shall always be open for inspection by the commission or any of its authorized auditors, accountants or inspectors for the purpose of ascertaining the correctness of the wage expenditure and number of men employed and such other information as may be necessary for the uses and purposes of the commission in the administration of this chapter. 11 74. Interstate commerce. § 114. The provisions of this chapter shall apply to employers and employees engaged in intrastate, and also in interstate or foreign com- 1174 New Yokk Appendix. 1257 merce, 29 for whom a rule of liability or method of compensation has been 29 — Whether car repairer working on car in shop engaged in interstate com- merce. — On appeal in compensation proceedings, the following opinion was delivered by Woodward, J. ' ' The Lehigh Valley Railroad Company, a corporation operating an interstate commerce rail- road, appeals from an award of the workmen 's compensation commission. The only question here presented is whether the claimant, who was em- ployed in the car shops of the railroad company in repairing car No. 67058, which ear was used in the general traf- fic of the railroad, both intrastate and interstate, is within the purview of the laws of the state. The railroad urges that he comes within the interstate com- merce law, and is therefore excluded from the compensation provided by the laws of this state. We think the con- tention is not sound. "Section 21 of the workmen's com- pensation law provides that in 'any proceeding for the enforcement of a claim for compensation under this chap- ter, it shall be presumed in the absence of substantial evidence to the contrary (1) that the claim comes within the provisions of this chapter,' etc. There is no evidence here that this claim does not come within the provisions of the law, unless it be the affidavit of an employee of the railroad company that this particular car had been used in domestic and interstate commerce prior and subsequent to this accident. The car at the time of the accident was in the" shop of the Lehigh Valley Railroad Company at East Buffalo for repairs. It was for the time withdrawn from transportation duty and was placed in the machine shop for repairs. This ma- chine shop is maintained and operated within the state of New York. If this shop were used in the construction of new cars, it would hardly be suggested that they were engaged in interstate commerce, in such manner as to take employees out of the protection of the laws of this state, and no reason sug- gests itself why this old car, under- going repairs, was in any sense a part of interstate commerce, in the sense necessary to bring it within the various acts of the United States governing such commerce. We think the award was within the purview of the statute, and should be affirmed." Okrzsezs v. Lehigh Valley B. Co., — App. Div. (N. Y.) — , 155 N. Y. Supp. 919 (1915), aff'g 9 N. C. C. A. 1283. Whether railroad shop carpenter en- gaged in intrastate or interstate com- merce. — On March 22, 1915, the claim- ant was employed as a carpenter in the repair shop of a railroad company , engaged both in intrastate and inter- state commerce. The shop was used for the repair of engines, engaged both in interstate and intrastate commerce, and at the time of the accident there were engines in the repair shop which, just previous to being put in the repair shop, had been used in interstate com- merce. While the claimant was working at the repair shop, and was engaged in removing windows and sashes from a._ partition wall, between two of the shops in order that there might be more light afforded in one of the shops, he put his arm through an opening in one of the windows, and placed his hand on the rail of a track of a traveling crane which came along and passed over his hand, inflicting such injuries that ampu- tation was necessary. The commission held that the claimant was not engaged in interstate commerce at the time of the accident, but that the claim came within the provisions of the workmen 's compensation act. Sauter v. New York Cent. B. Co., 6 N. Y. St. Dep. Bep. (No. 33, p. 61, 1915). Track foreman struck in eye by chip of steel while repairing track. — The \ claimant was employed as a section foreman by the defendant. On Sep- 1258 10 Negligence and Compensation Cases Annotated. H 74 [Notes on applicability of compensation act to interstate employees.] tember 27, 1915, while the claimant was working upon the main line tracks, he was knocking a bolt out of the track after the nut had been cut off from the bolt, when a small chip of steel flew into his left eye, completely destroying the sight of that eye. The tracks on which he was working were used for interstate commerce as well as intra- state commerce. The injury did not arise out of any negligence attributable to his employer. Award of compensa- tion was made at the rate of $7.69 weekly for a period of 128 weeks. His failure to give ten days' notice of in- jury to his employer was excused on the ground that the employer was not .prejudiced thereby. Slintz v. Erie R. Co., 6 N. Y. St. Dep. Eep. (No. 36, p. 95, 1916). Brakemau or switchman injured un- coupling cars — Whether interstate em- ployee. — The deceased was employed by the Pennsylvania Railroad Company at its terminal, either as a brakeman or switchman, the record was not clear as to which, and on August 25, 1914, while attempting to uncouple two cars from a train, there was some sort of an explosion, and he was killed. The train upon which the deceased was working was a local Long Island train and had just come in from Port Wash- ington, Long Island. None of the cars of the train ran outside of the state, but two of the cars were afterward used that day to carry baggage which was transferred to them from New Jer- sey. The Pennsylvania Railroad Com- pany had an arrangement with the Long Island Railroad Company, whereby the deceased worked exclusively shifting cars for the Long Island Railroad Com- pany, but was paid by the Pennsyl- vania Railroad Company. Tickets were sold by the Long Island Railroad Com- pany to points outside the State of New York, and tickets purchased outside the state were honored on that road. There was no proof that the train, upon which the deceased was working at the time of the accident, carried any except local passengers. The commission found that it carried baggage which was des- tined for another state, but there seems to have been no proof for such finding. Compensation was awarded and the em- ployer appealed. In affirming the award the court said: "The only point of im- portance made in this case is that the deceased was engaged in interstate com- merce. It seems to us that this point is not well taken. The deceased, the rail- road, and the trains operated exclusively within this state. The Long Island Railroad brought nothing into the state and carried nothing out of the state. Sometimes it carried interstate baggage and interstate passengers. This, per- haps, would be interstate traffic, under the ruling in Pacific Coast Ry. Co. v. United States, 173 Fed. 448, 98 C. C. A. 31. The commission has found that the train which the deceased was break- ing up did, in this instance, carry inter- state baggage. Except for this finding, there would be no question here. But assuming, as we must, that this is true, under our ruling in Parsons v. Delaware & H. Co., 167 App. Div. (N. Y.) 536, 153 N. Y. Supp. 179, the claimant may nevertheless recover. There we said: 'The actual work being performed at the time of the injury determines its character, and it is the real test whether it is interstate or intrastate work. ' "Therefore, even if train No. 423, (which was the train deceased was breaking up at the time of the acci- dent), had carried baggage, on its trip just ended, destined for another state, the baggage had been unloaded before the accident, and, at the time of the accident, the deceased was breaking up the train of empty cars preparatory to the formation of a new train. If the actual work being performed at the time n74 New York Appendix. 1259 [Notes on applicability of compensation act to interstate employees.] of the injury is the real test as to whether it is interstate, surely the work being performed by the deceased when he was injured was not interstate, for he was uncoupling empty cars on a local railroad, operating always exclu- sively within this state — a railroad having no interstate characteristic whatever, except when actually engaged in carrying interstate passengers, bag- gage, or freight." Fairchild v. Penn- sylvania E. Co., — App. Div. (N. Y.), — 155 N. T. Supp. 751 (1915). Fireman's eye struck by cinder — Whether interstate employee. — The claimant a resident of New York, was employed as a locomotive fireman by a railroad company carrying both inter- state and intrastate commerce. At the time of the accident the claimant was firing an engine pulling a train from Rensselaer, N. Y. to North Adams Jet., Mass. While passing through Bieh- monij, Mass., a cinder from the smoke- stack lodged in his right eye, causing the loss of the eye. Both the employer and the employee were engaged in inter- state commerce at the time of the in- jury, but the accident was not due to any negligence attributable to the em- ployer. Compensation was awarded for a period of 128 weeks for the loss of the right eye. Nelson v. New York Cent. E. Co., 6 N. Y. St. Dep. Eep. (No. 35, p. 65, 1915). Railroad plumber injured repairing station. — The deceased was employed as a plumber in the maintenance of ways department of a railroad company engaged in both interstate and intra- state commerce. On October 14, 1915, he was repairing pipes which constituted a part of the plumbing apparatus be- neath the station. He attempted to go across the tracks in front of the sta- tion and was struck and killed by a train. His crossing the track was in connection with his employment and his being struck by the train was due to no negligence on the part of the railroad company or its employees. The commission held that he was not en- gaged in interstate commerce at the time of the accident and that the in- juries to the deceased were accidental injuries and arose out of and in the course of his employment. An award of compensation was made for the benefit of his dependents. Vollmers v. New York Cent. R. Co., 6 N. Y. St. Dep. Rep. (No. 33, p. 75, 1915). Railroad fireman injured. — The claim- ant was employed as a locomotive fire- man by a railroad company engaged both in interstate and intrastate com- merce. While the claimant was ' tem- porarily acting as engineer, and mak- ing up a train from cars standing on the various tracks at a terminal, in the State of New York, he was leaning out of the cab looking to the rear when he was struck by a roof board project- ing from a car on an adjoining track. He was thrown to the bottom of the cab and seriously injured. By reason of the injury he was disabled from the date of the accident April 25, 1915, to October 10, 1915, and on that date was still disabled. The cars which he was switching and the car from which the board projected contained interstate commerce and had come from other states and were destined to other states. The accident was not caused by negli- gence attributable to his employer. Compensation was awarded and the ease continued for further hearing. Bates v. Delaware & Hudson E. Co., 6 N. Y. St. Dep. Eep. (No. 35, p. 74, 1916). Track laborer falling from hand car. — The deceased was employed as a laborer by a railroad company, engaged in the operation of a steam railroad as a common carrier between points wholly within the State of New York. The said railway at times transported freight offered to it having an origin 1260 10 Negligence and Compensation Cases Annotated. 11 74 [Notes on applicability of compensation act to interstate employees.] or a destination at points in other states. On November 25, 1915, the deceased was in a gang of laborers assigned to make repairs to a spur track at Pleas- ant Plains, N. Y. When these men reached a point on the spur track about 100 feet from the switch, the deceased accidentally fell backwards off the hand car on which they were riding. The accident caused a fracture and disloca- tion of the spine; as a result of which injuries he died the following day. At the time of the accident, deceased was not engaged in interstate commerce. Compensation was awarded his widow at the rate of $3.06 weekly, during widowhood, with two years compensa- tion in one sum upon remarriage. Lib- erti v. Staten Island Ey. Co., 6 N. Y. St. Dep. Rep. (No. 36, p. 94, 1916). Watchman guarding interstate trains killed. — The claimant was employed as a night watchman for the protection of cars, and to watch and protect trains passing that point guarded. All the trains passing this point during his hours of work were trains engaged wholly in interstate commerce. He re- ported to work at 7 p. m., and his body was found on the railroad tracks, about midnight, completely mangled, having been struck by a passing train while on duty. It was held that his depend- ents were entitled to compensation. Striebich v. New York, C. & St. L. E. Co., 5 N. Y. St. Dep. Eep. 420 (1915). Railroad section hand killed. — The claimant was employed by a railroad company as a section hand, and while repairing the main line track used inter- changeably for both interstate and in- trastate commerce, he was run over by a train and killed. The commission held that the claim came within the provisions of the compensation law and awarded compensation for the benefit of his widow. Drake v. New York Cent. E. Co., 6 N. Y. St. Dep. Sep. (No. 34, p. 48, 1915). Freight conductor as interstate em- ployee. — The deceased was a conductor on one of the trains of the New York Cent. & H. E. E. Co., and was killed while in charge of a train, made up of freight cars, many of which were trans- porting freight between the State of New York and other states. The rail- road company resisted payment of com- pensation on the ground that the de- ceased was engaged, at the time of the accident, in interstate commerce and that under the provisions of section 114 of the compensation law, no compensa- tion could be awarded. In passing upon this contention, the commission said: "Under the decision of the Court of Appeals in the case of Winfield v. New York Cent. & H. E. E. Co., 9 N. O. O. A. 299, just decided, this claim on the part of the employer cannot be sustained. That case, as the commission under- stand it, decides very clearly that the remedy given by the Federal Employ- ers' Liability Act is not exclusive for all injuries to employees of a railroad corporation engaged in interstate com- merce, but only in case there is either an admission or proof that the accident was occasioned by the negligence of the interstate carrier which is not the case here. This being the law, there can be no doubt but that the present case is compensable under our stat- ute." An award of compensation was therefore made for the benefit of the dependents of the deceased. Buell v. New York Cent. & H. B. E. Co., 6 N. Y. St. Dep. Eep. (No. 33, p. 78, 1915). Railroad section man injured. — The claimant was employed as a laborer by a railroad company carrying both in- terstate and intrastate commerce. While engaged in general work of re- pair and maintenance of the main line tracks, he struck a piece of stone with his pick and it flew up and hit him in. the eye, causing traumatic ulcer. It 1174 New York Appendix. 1261 [Notes on applicability of compensation act to interstate employees.] was held that the injuries were acci- dental, and arose out of and in the cause of his employment. An award of com- pensation was made. Oliveri v. Erie R. Co., 5 N. Y. St. Dep. Rep. 378 (1915). Freight handler injured.— The claim- ant was employed as a freight handler by the Lehigh Valley Railroad Com- pany and while assisting to unload, a car of gang planks from the company's float at Pier 34 in the North River, City of New York, the two men who had hold of the opposite end of a plank dropped their end and the claimant's left index finger was crushed necessi- tating the cutting off of the tip of the finger. The car and planks which the claimant was unloading were at the time of the accident being used in inter- state commerce. The commission held that the injury was accidental and arose out of and in the course of the employment. An award of compensa- tion was made. Petrowsky v. Lehigh Valley R. Co., 6 N. Y. St. Dep: Rep. (No. 34, p. 53, 1915). Railroad baggageman injured by fail- ure of brakes on truck. — The claimant was a baggageman for a railroad com- pany. All trains coming into the sta- tion at this point came from the State of New Jersey. At the time claimant was injured he was operating a truck loaded with United States mail, which the railroad was transporting. The brakes of the truck failed to work and he was jammed against an elevator gate. It was held that the injuries were accidental and arose out of and in the course of his employment. An award of compensation was made. Fitzsimmons v. Pennsylvania R. Co., 6 N. Y. St. Dep. Rep. (No. 32, p. 49, 1915). Conductor on interstate train in- jured. — At the first hearing of this claim it appeared that the railroad company had made a settlement with the ad- ministrators of the deceased for $800, and the railroad company was given a general release. The commission, be- lieving that the release was based upon a claim of liability under the Federal Employers* Liability Aet, dismissed the claim. The claim was again brought before the commission, when it ap- peared that at the time the said general release was given there was a collateral agreement that the general release was not to bar any claim for compensation under the compensation law, but that the payment was made by the railroad company substantially as » gratuity owing to the long service of the de- ceased with the company. The deceased • was conductor of a train which started at Watertown, N. Y., every day and ran to Norwood, N. J. The train was known as a cut-out train, that is, it picked up cars along its route to be carried to the end of its route and from there for- warded to other destinations, and it brought back cars from beyond its route which were to be left at places along its route. At the time of the accident the train contained cars which were engaged in interstate commerce. While he was with his train at Philadelphia, N. Y., cutting out cars and picking up new ones, he was run over by the engine and three cars of his train and sus- tained injuries from which he died. The accident was not due to negligence at- tributable to the employer. The com- mission held that the injury arose out of and in the course of his employ- ment. Award of compensation was made for the benefit of his dependents. Buell v. New York Cent. R. Co., 1 St. Ind. Comm. Bull. (No. 5, 1915) 12, 6 N. Y. St. Dep. Rep. (No. 34, p. 54, 1915). Railroad boilermaker repairing in- terstate engine injured.— The claimant was a boilermaker employed by a rail- road company and while caulking rivets in the firebox of an engine used both before and after the accident, in mak- 1262 10 Negligence and Compensation Cases Annotated, f 74 [Notes on applicability of compensation act to interstate employees.] ing up interstate trains, a chip from a rivet struck him in the left eye, result- ing in the loss of use of that eye. He was held to be entitled to compensa- tion and an award was made. Heinze v. Lehigh Valley E. Co., 5 N. Y. St. Dep. Eep. 419 (1915). Track laborer seeking shelter from storm under car. — The deceased was employed by a, railroad company en- gaged in carrying both interstate and intrastate commerce. The deceased was a member of a gang of track men en- gaged in ballasting the main line tracks of the road. A rain storm came up and the men took refuge under a car which was standing on a side track. While he was there another train of the said company backed onto the side track and bumped into the car under which the men were seated, causing the car to run over the deceased, instantly kill- ing him. The car which ran over him contained an interstate shipment and the train which bumped into him con- tained interstate freight. The tracks on which the deceased had been work- ing previous to seeking shelter from the rain were ufced by the railroad com- pany for both interstate and intrastate commerce. The injury was not occa- sioned by any negligence attributable to the railroad company. Compensa- tion was awarded for the benefit of his widow and dependent children. Franchi v. Delaware, L. & W. R. B. Co., 6 N. Y. St. Dep. Eep. (No. 35, p. 68, 1915). Track walker on tracks used for both interstate and intrastate commerce killed. — The deceased was employed as a track walker by the Delaware and Hudson Eiver Eailroad Company, and while walking on a track used for both interstate and intrastate freight he was struck by a train and killed. His de- pendents were held to be entitled to compensation. Quattrini v. Delaware & H. R. E. Co., 5 N. Y. St. Dep. Eep. 393 (1915). Laborer injured drawing in gang- plank of interstate boat. — The claim- ant was employed as a laborer by a railroad company engaged in the car- riage of both interstate and intrastate commerce, and in connection therewith, operated barges for the transportation of freight from terminals of the rail- road in New Jersey to terminals in New York. While the claimant was engaged in unloading freight from a barge in the City of New York, and while drawing in a gangplank, it fell on his left foot, injuring the same. The^aarge which he was unloading con- tained freight shipped from points out- side of the state. The commission held that he was entitled to recover and an award of compensation was made. Eutigliania v. Pennsylvania E. Co., 5 N. Y. St. Dep. Eep. 412 (1915). Stevedore engaged in interstate com- merce struck in eye by piece of coke while removing nail in car. — The claim- ant was employed as a stevedore by a railroad company. On January 7, 1915, the claimant was engaged in loading freight into a car at the company's freight house. The freight was to be forwarded to Chicago, Illinois. While the claimant was so engaged, he noticed a nail protruding from the inside of the wall of the car. In driving the nail back into the wall of the- car, a piece of coke that had become lodged in a crack in the wall of the car flew out and struck him in his left eye. An ulcer later developed, and finaly resulted in the loss of the use of that eye. At the time of the injury both the claimant and the employer were engaged in inter- state commerce, but the injury was not occasioned by any negligence attrib- utable to the employer. Compensation was awarded at the rate of $7.69 weekly for a period of 128 weeks. Dolan v. New York Cent. E. Co., 6 N. Y. St. Dep. Rep. (No. 36, p. 92, 1915). Interstate employees, right of to IT 75 New York Appendix. 1263 or may be established by the congress of the United States, 30 only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign com- merce, except that such employer and his employees working only in this state may, subject to the approval and in the manner provided by the commission and so far as not forbidden by any act of congress, accept and become bound by the provisions of this chapter in like manner and with the same effect in all respects as provided herein for other employers and their employees. f 75. Penalties for false representation. § 115. If for the purpose of obtaining any benefit or payment under the provisions of this chapter, either for himself or any other person, any person wilfully makes a false statement or representation, he shall be guilty of a misdemeanor. compensation under state compensation acts, see Winfield v. New York & H. E. R. Co. (N. T.), 10 N. C. C. A. 916. Watchman engaged about construc- tion work, whether interstate employee, 9 N. C. C. A. 1282-1283, note 3. Car repairer as interstate employee, 9 N. C. C. A. 1284-1285, note 3. Working on car in repair shop, whether interstate employee, 9 N. C. 0. A. 1283, note 3. Switchman falling into gondola car, whether interstate employee, 9 N. C. C. A. 1283-1284, note 3. Scrap picker killed by shunted car, whether interstate employee, 9 N. C. 0. A. 1284, note 3. Track supervisor, struck on head by water crane while leaning from engine cab, 9 N. O. C. A. 1285, note 3. Yard conductor as interstate em- ployee, 9 N. C. C. A. 1285, note 3. Track inspector, whether engaged in interstate commerce, 9 N. C. C. A. 1286- 1287, note 3. Fireman inspecting engine, whether engaged in interstate employment, 9 N. C. C. A. 1285-1286, note 3. Employee injured crossing employer's tracks to take train, whether engaged in interstate commerce, 9 N. 0. C. A. 1285, note 3. Railroad fireman falling from cab, 9 N. C. C. A. 1283, note 3. Railroad employee seeking shelter from storm, injured while, 9 N. C. 0. A. 1221, note 23. Wiping engine, engine wiper's cloth- ing fired by lighted waste while, 9 N. C. C. A. 1218, note 23. Private car not in use, whether em- ployee coupling engine to, is engaged in interstate commerce, 9 N. C. C. A. 1189, note 4. Loading ties for track repair, whether interstate employment, 9 N. C. C. A. 1284, note 3. Engineer operating train for em- ployees painting struts along right of way, whether engaged in interstate em- ployment, 9 N. C. C. A. 1286, note 3. References to N. C. C. A. Effect of Federal Employers' Liabil- ity Act upon workmen's compensation act, 9 N. C. 0. A. 286-307. Employees who are within Federal Employers ' Liability Act, 6 N. C. C. A. 183, 208. 30 — Remedy under compensation act, whether remedy in admiralty exists con- currently, 9 N. 0. C. A. 1287, note 4. 1264 10 Negligence and Compensation Cases Annotated. if 76 1T 76. Limitation of time. § 116. No limitation of time provided in this chapter shall run as against any person who is mentally incompetent or a minor dependent so long as he has no committee, guardian or next friend. IT 77. Duties of commissioner of labor. § 117. The commissioner of labor shall render to the commission any proper aid and assistance by the department of labor as in his judgment does not interfere with the proper conduct of such department. II 78. Unconstitutional provisions. § 118. If any section or provision of this chapter be decided by the courts to be unconstitutional or invalid, the same shall not affect the validity of the chapter as a whole or any part thereof other than the part so decided to be unconstitutional or invalid. 31 • 79. Actions or causes of action pending. § 119. This act shall not affect any action pending or cause of action existing or which accrued 32 prior to July first, nineteen hundred and fourteen. Article 7. laws repealed; when to take effect. H 80. Laws repealed. § 130. Article fourteen-a and sections two hundred and fifteen to two hundred and nineteen-g, both inclusive, of chapter thirty-six of the laws of nineteen hundred and nine, as amended [added] by chapter six hundred and seventy-four of the laws of nineteen hundred and ten, are hereby repealed. Reference to N. C. C. A. Admiralty law and compensation acts, conflict between, 10 N. C. 0. A. 688-699. 31 — Reference to N. C. C. A. Partial invalidity not to affect con- stitutionality, 6 N. C. C. A. 548; 3 N. C. O. A. 600. 32 — References to N. C. C. A. Retrospective effect, 4 N. C. C. A. 786. Contracts of employment entered into before act passed, 3 N. C. C. A. 653. Injury received before passage of act, 4 N. C. C. A. 512. ' 82 New Yobk Appendix. 1265 H 81. When to take effect. § 131. This chapter shall take effect immediately, provided that the application of this chapter as between employers and employees and the payment of compensation for injuries to employees or their dependents, in ease of death, shall take effect July first, nineteen hundred and fourteen, but payments into the state insurance fund may be made prior to July first, nineteen hundred and fourteen. f 82. When compensation act effective. § 2. This act shall take effect immediately, except as provided in section one hundred and thirty-one as re-enacted hereby.