about the awnings, and Mr. Friedman, the representative of the construction company, told him to go ahead, and for each awning he removed he got 10 cents. He was told what house to work on. Claimant had pliers with him and went to work, and the eighth day the accident happened. He was taken to the hospital. He said no one came to see him, and he did not know who was responsible; and he called up Feinberg to ask him whom he worked for, and Feinbereg told him he was working for Freidman. The claimant testified he had worked for other people on the same terms, and after he had finished working for Freidman he would have gone back to Feinberg to find whether he had any work for him. The claimant had never worked for the construction company before. He could work such hours as he pleased. The construction company simply designated the houses where he was to take down awnings, and retained the right to discharge him in case he did not do his work properly. The claimant was not the regular employee of any person, but worked for any one needing his services. The claimant testified: "I couldn't go and get anybody to put on the job, becausue Mr. Freidman would not let me. He could have discharged me at any time he wanted to." [2] From the evidence in the case the commission could find that the Hudson View Construction Company retained the control and direction of the details and method of performing the work, and could discharge the claimant if he disobeyed its orders. The commission having found that construction company was the employer, and there being evidence to support such finding, the award should be affirmed. All concur, except Cochrane, J., who dissents. SUPREME COURT OF NEW YORK. BREZZENSKI CRENSHAW ENGINEERING CO. ET AL.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-AWARD FOR DEATH FROM SUNSTROKE-FINDINGS. An award for an employee's death from sunstroke is not justified, where the Industrial Commission does not find that he met his death through exposure to heat more excessive than that to which others were subjected, or through any special hazard of the employment, but merely finds that he met his death from sunstroke arising out of and in the course of employment. (For other cases, see Master and Servant, Dec. Dig. § 416.) Appeal from State Industrial Commission. Claim by Mrs. Jadwiga Brezzenski for compensation under the Workmen's Compensation Act for herself and children on account of *Decision rendered, June 30, 1919. 177 N. Y. Supp. 100. the death of Andrew Brezzenski against the Crenshaw Engineering Company, employer, and the Employer's Liability Assurance Corporation, Limited, insurance carrier. From an award of the State Industrial Commission in favor of claimant, the employer and insurance carrier appeal. Award reversed, and claim remitted. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg JJ. Bertrand L Pettigrew of New York City (Walter L. Glenney, of New York City, of counsel), for appellants. Charles D. Newton, Atty. Gen. (E C. Aiken, Dept. Atty. Gen., of counsel), for Industrial Commission. HENRY T. KELLOGG, J. The deceased became prostrated with the heat while at work along the tracks of an elevated railway, at about 4:30 o'clock in the afternoon of August 9, 1918, and died the following day. He had been engaged for many hours on the elevated structure, moving up and down in the full glare of the sun, carrying bolts and material to workmen, and flagging trains to warn them of repair work then in progress. It was 88 degrees Fahrenheit in the shade between the hours of 4 and 5 p. m. upon that day. The day, evidently, marked the conclusion of an intense heat wave, for on the 5th the maximum temperature was 91, on the 6th 93, on the 7th 102, and on the 8th 94. The commission found that the deceased came to his death from a heatstroke arising out of and in the course of the employment. In Campbell v. Clausen-Flanagan Brewery, 183 App. Div. 499, 171 N. Y. Supp. 522, it was said of a sunstroke case: "The question is whether the deceased, by reason of his employment, was subjected to a special and increased hazard not common to the public in general, but because of the particular circumstances under which he was required to work." After it had been remarked therein that the facts were undisputed, it was also said: "It was a question of fact for the commission to determine whether the deceased was specially affected by the severity of the heat by reason of his employment." In the case at bar the commission did not find that the deceased came to his death through exposure, by reason of his employment, to heat more excessive than that to which others were subjected, or through any special hazard of his employment. Therefore it did not make a finding of fact which, under the authorities, was necessary to justify an award. The case should consequently be remitted to the Industrial Commission for such further action as may be advised. The award reversed, and claim remitted to the Industrial Commission for such further action as may be advised. All concur. SUPREME COURT OF NEW YORK. O'ESAU E. W. BLISS & CO. ET AL.* MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -FILING CLAIM WITHIN ONE YEAR JURISDICTIONAL. Failure to file claim with the State Industrial Commission within one year from date of injury, as required by Workmen's Compensation Act, $ 28, leaves the commission without jurisdiction, though the claim is filed less than a year after disability, and such failure cannot be disregarded on the theory that the employer, by continuing injured servant in service, is estopped to plead that the claim is barred. (For other cases, see Master and Servant, Dec. Dig. § 398.) Appeal from State Industrial Commission. Proceeding by Martha O'Esau, as widow and as administratrix of the goods, chattels, and credits of John M. O'Esau, deceased before the State Industrial Commission for an award under the Workmen's Compensation Law on account of injuries sustained by deceased during his lifetime, opposed by the E. W. Bliss Company, employer, and the Etna life Insurance Company, insurer. From the award, the employer and insurer appeals. Award reversed, and claim dismissed. See, also, 186 App. Div. 556, 174 N. Y. Supp. 739. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. James B. Henney, of New York City (William H. Foster, of Syracuse, of counsel), for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent. WOODWARD, J. The only question necessary to be considered here is whether the failure of the claimant to file a claim within the period of one year from the time of the accident may be disregarded, upon the theory that the employer, by continuing the employee in its service, worked an estoppel. On the 15th day of November, 1917, the State Industrial Commission made an award to John M. O'Esau, holding that the employer and insurance carrier were estopped to urge the provisions of section 28 of the Workmen's Compensation Law (Consol. Laws, c. 67). From this award an appeal was taken to this court, and at the March term in the present year it was urged that a certain letter, dated October 22, 1916, operated as a claim under the act. The case was sent back to the commission to make such findings as it should find proper, and it was then held that the letter in question constituted a claim, and an award was made. A further appeal from an order of this court confirming the award resulted in a dismissal of the appeal on the ground that it was not properly before the Court of Appeals with a distinct suggestion that the letter in question did not constitute a claim within the meaning of the *Decision rendered, June 30, 1919. 177 N. Y. Supp. 203. statute. The case was then reconsidered by the State Industrial Commission, which made findings of fact in which, after pointing out the manner and extent of the injury, it was found that * "(2) * * Said injuries soon incapacitated him from doing his former work, but his employer retained him in the capacity of foreman, or overseer, and at the rate of wages earned prior to said accident. He was kept at work by his employer from the date of said accident to April 30, 1917, on which latter date he was discharged. From the date of said accident to April 30, 1917, during which time his employer retained him in a supervisory capacity, John M. O'Esau lost but three weeks on account of said injuries, and from the date of said accident to June 16, 1916, his employer furnished him with medical attention at the clinic located at the employer's plant. "If he had not been retained by his employer as a foreman, or overseer, he would have been disabled from working from practically the date of said accident to November 15, 1917. Having been discharged by his employer on April 30, 1917, so far as a loss of wages is concerned, he was actually disabled from April 30, 1917, to March 21, 1918, the date of his death. "(3) John M. O'Esau filed with the commission a claim for compensation on June 6, 1917, which was more than a year after the date of the actual injury received, but less than one year from the date of actual disability. "(4) The conduct of the employer, in view of all the circumstances, and particularly in keeping the claimant employed up to April 30, 1917, for a period of more than a year after the date of said accident, at a rate of wages equal to the wages earned prior to said accident, and in furnishing medical attention for the period required by the Compensation Law, directly induced the claimant to delay in filing a claim for compensation until after the expiration of the statutory period, as set forth in section 28 of the Compensation Law." Upon these findings of fact the commission decided that the"employer and insurance carrier are alike estopped to plead the statute of limitations in respect to the failure of the claimant to file his claim within one year after the injury, since, by the conduct of the employer, whether fraudulent or not, it has directly induced the plaintiff to delay in filing his claim for compensation with the commission until after the expiration of one year from the date of said accident." Section 18 of the Workmen's Compensation Law requires that a notice must be served within 10 days, or the claim is barred, unless the commission shall, in a proper case, excuse such failure, and it has been held that the 10 days thus limited runs from the date of disability, not from the day of the accident; but we find no provisions of the statute which permits the State Industrial Commission to set aside the requirement of section 28 of the act. This section is not properly a statute of limitations; it is a condition of the right to compensation under the act. The claimant has no common-law right of compensation; this has been taken away, and a new right has been substituted, upon the conditions named in the act, and among these conditions is that the claim must be filed with the commission within the period of one year "after the injury," and not only is there no provision for the commission to excuse such filing, but it is provided in section 116 of the act that "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," thus excluding all other cases under the rule of "expressio unius est exclusio alterius." Aultman & Taylor Co. v. Syme, 163 N. Y. 54, 57, 57 N. E. 168, 79 Am. St. Rep. 565. No suggestion is made here that the claimant was mentally incompetent. The record clearly shows that he was not; and the statute provides that the "right to claim compensation under this chapter shall be forever barred unless within one year after the injury * a claim for compensation thereunder shall be filed with the commission." Section 28. The rule is thoroughly well established that where a statute gives a right unknown to the common law, and limits the time within which an action shall be brought to assert it, the statutory limitation measures the extent and qualifies the nature of the right conferred. Dailey v. N. Y. O. & W. R. Co., 26 Misc. Rep. 539, 540, 57 N. Y. Supp. 485; The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358; Wooden v. W. N. Y. & P. R. R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803; Hill v. Supervisors, 119 N. Y. 344, 347, 23 N. E. 921. In the latter case the court says that, where the statute creates a new cause of action, "the limitation of time is so incorporated with the remedy as to make it an intergal part of it, and the condition precedent to the maintenance of the action at all." Rosin v. Lidgerwood Manufacturing Co., 89 App. Div. 245, 253, 86 N. Y. Supp. 49. "The right to claim compensation under this chapter is forever barred," says the statute, "unless within one year after the injury * a claim for compensation thereunder shall be filed with the commission." This is clearly a jurisdictional fact; without the filing of the claim within one year from the injury the commission is powerless to act because the right to "claim compensation" has been forever barred, and even the State Industrial Commission may not revive that claim sufficiently to give it jurisdiction to apply the doctrine of estoppel. What a court of law or of equity might do in a case coming within the scope of an estoppel, which always involves the element of fraud or something which operates as a fraud. (Wilmore v. Flack, 96 N. Y. 512, 520), it is not necessary now to inquire. The claimant worked for the employer for many months after the accident, during all of which time he was in the possession of all his mental faculties, as we must assume. He was bound to know the law, and this law required, as a condition precedent, that he should file his claim within a period of one year from the date of the accident. Having failed to do this, the "right to claim compensation under this chapter" was at an end. It was beyond the jurisdiction of the State Industrial Commission, and its holding that the employer and insurance carrier were estopped is utterly without force or effect. No evidence of fraud appears in the record; the employer furnished the claimant with work which he could do at his old wages following the injury, and there is not a suggestion that anything was done to prevent the claimant taking such action as his interests required. The award appealed from should be reversed, and the claim dismissed. All concur. |