But it appears that a notice in writing as required by the statute was actually given to the insurer, the only possible error in which was that the date of the accident is given as of April 18 instead of April 17, and it is unnecessary to consider the effect, if any, of any question of variance, for counsel for the insurer having expressly stated before the Industrial Accident Board that 'he did not wish to raise any question as to the giving of notice of the injury' it cannot when defeated contend for the first time in this court on appeal that the notice was insufficient. Cleveland v. Welsh, 4 Mass. 591; Brown v. Webber, 6 Cush. 560, 563; Dole v. Boutwell, 1 Allen, 286, 287; Oulighan v .Butler, 189 Mass. 287, 75 N. E. 726. The argument for reversal on the merits is that there is no evidence warranting a finding that the deceased employee received an injury in the course of or arising out of his employment and that the finding of the Board having been based on mere conjecture, the decree awarding compensation to the widow must be reversed. [2, 3] We are not concerned with the weight of evidence or the credibility of witnesses, and the findings of fact in the report of the single member of the Board which were affirmed and adopted on review must stand unless plainly unwarranted. Herrick's Case, 217 Mass 111, 104 N. E. 432. The uncontroverted evidence recited in the report shows that the employee, a stock cutter, while carrying a plank from a pile of lumber in the mill yard to the saw where he worked dropped the plank on his foot, and on his own statements which were admissible, and the evidence of his wife and of the physician who attended him before his removal to the hospital, it properly could be found that the blow injured the big toe of his left foot causing a ragged cut extending perhaps three-quarters of an inch across the base of the nail from which blood oozed. [4] But, if the finding that the injury arose out of and in the course of his employment is amply sustained, the further finding is that the employee died of septicemia, or blood poisoning. It is upon this finding that the principal contention of the insurer rests, that the injury described was not the cause of the employee's death. It was said in Madden's Case, 222 Mass. 487, 495, 111 N. E. 379, 383 (L. R. A. 1916D, 1000): "The substantial question is whether the diseased condition was the cause, or whether the employment was a proximate contributing cause." The narration of his objective symptoms as given by his wife after he returned home on the day of the accident is that both the toe and foot were swollen and "turned a purplish red" and the next day "the foot was puffed up, the toe, the foot and leg were puffed up to about the knee. It looked as if it were pressed upon. * It was a dark color, a reddish purple, dark red." The physician who attended him and arranged for his admission to the hospital where he died three days after the injury substantially corroborated the evidence of the widow. It is argued that his injuries were insufficient to cause septicemia, in so brief a period, and the autopsy revealed a septic condition of the left knee with a general septicemia. It is also disclosed that the knee joint which was found to be infiltrated with from three to four ounces of thin pus was the primary seat of the infection. If in connection with these apparently undisputed facts the question of the cause of death rested solely on the medical evidence of the hospital staff, the employee's condition did not arise from the injury as he was then suffering from septic arthritis which had developed general septicemia in his system to which his death was solely attributable The widow and claimant, however, was not conclusively bound by the evidence introduced by the insurer and having presented evidence which warranted a finding that the blow from the plank would be sufficient to cause the septic conditions previously described and which caused his death we cannot say as matter of law that the conclusion was wrong. Crowley's Case, 223 Mass. 288, 289, 111 N. E. 786; Madden's Case, 222 Mass. 487, 111 N. E. 379, L. R. A. 1916D, 1000. The rulings requested by the insurer were denied rightly and the decree should be affirmed. Ordered accordingly. COURT OF APPEALS OF NEW YORK. TWONKO ROME BRASS & COPPER CO. et al. Appeal of AMERICAN MUT. COMPENSATION INS. CO.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATIONNOTICE OF CLAIM-WAIVER. An unauthorized agent, acting for an employer and the insurance carrier, cannot waive Workmen's Compensation Act, § 28, requiring claim for compensation to be filed with the commission within one year, so as to make the waiver binding on the parties to a proceeding to obtain compensation for personal injuries (For other cases, see Master and Servant, Dec. Dig. § 398.) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION-ESTOPPEL. An employer and an insurance carrier under the Workmen's Compensation Act were not estopped to set up that Workmen's Compensation Act, § 28, requiring claim for compensation to be filed with the commission within one year, was not complied with, because the insurance carrier had paid medical bills for the injured employee. (For other cases, see Master and Servant, Dec. Dig. § 398.) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION— PRESENTATION OF CLAIM-LIMITATIONS. An injured employee who fails to present a claim for compensation to the commission within one year as required by Workmen's Compensation Act, § 28 is thereafter barred from obtaining compensation for his injuries. (For other cases, see Master and Servant, Dec. Dig. § 398.) Appeal from Supreme Court, Appellate Division, Third Department. Proceeding under the Workmen's Compensation Act by Frank Twonko for compensation for personal injuries, opposed by the Rome Brass & Copper Company, employer, and the American Mutual Compensation Insurance Company, insurance carrier. Award was affirmed by a divided court (183 App. Div. 292, 170 N. Y. Supp. 682), and the employer and insurance carrier appeal. Order reversed. * Decision rendered, Oct. 15, 1918. 120 N. E. Rep. 638. Jeremiah F. Connor, of New York City for appellant American Mut. Compensation Ins Co. Briggs & Evans, of Rome, for appellant Rome Brass & Copper Co. Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent State Industrial Commission. Michael J. Larkin, of Rome, for respondent Twonko. CRANE, J. Section 18 of the Workmen's Compensation Law (Consol. Laws, c. 67), as applicable to this case, required notice of the injury to be given to the employer within 10 days after the accident, and by section 28 the right to claim compensation was forever barred unless within one year after the accident the claim for compensation was filed with the commission. Neither of these provisions was complied with. The commission found that the employer was aware of the accident and that neither the employer nor the insurance carrier was prejudiced by the failure to give the notice required by section 18. It may be that there is some evidence to sustain such a finding, but we are of the opinion that there is no legal excuse shown for failure to comply with section 28. The commission found, and the Appellate Division has sustained the finding by a divided court, that the employer and the insurance carrier were estopped from raising this objection. The facts do not justify this conclusoin. Frank Twonko, while in the employ of the Rome Brass & Copper Company, was injured on July 20, 1914. His claim for compensation was filed with the workmen's compensation commission on September 9, 1915, or 51 days after his right to compensation was barred by the statute. Twonko claimed to have stepped in a hole in the floor, turning his ankle, which thereafter led to serious results. He continued at work for 2 days, and then remained at home for 4 weeks. At the end of this period he returned to work for 3 days, and then remained at home for 5 weeks, when he called a doctor and was taken to the infirmary. Dr. Reid, who attended him, was apparently anxious about his compensation, as on September 26, 1914, the Rome Brass & Copper Company wrote to Mr. Whilliver, the district manager of the American Mutual Compensation Insurance Company, notifying him of the accident, and stating that Dr. Reid wanted to know about the man's hospital and medical charges. The insurance carrier replied on September 28, 1914, asking particulars regarding the accident. On October 20, 1914, Kenneth Bow, paymaster of the Rome Brass & Copper Company, called at the Rome Infirmary and procured from Frank Twonko a written statement, signed by him, giving the details of his accident and the extent of the injury. On October 23, 1914, a copy of this statement was sent by the employer to the insurance company. Twonko remained in the infirmary until the 6th of January, 1915. The insurance company sent checks to Drs. Reid and Stranahan for their services to Twonko as follows: On November 3, 1914, for $8; on November 14, 1914, for $44; on January 12, 1915, for $10; and on February 6, 1915, for $5; and to the Rome Infirmary a check dated December 7, 1914, for $30, and on January 12, 1915, a check for $31. Twonko testified: That at the time he signed the statement of October 20th for Kenneth Bow, he understood that it was a notice to the company of claim for compensation. "Mr. Petz [the interpreter] told me that I was going to get money from the Compensation Insurance Company, and that was the reason I signed the papers." The witness further says that this was the reason that he gave no further notice. Bow testified: "We told him that in order to have all the facts, so he would receive his compensation, it would be necessary for him to give us a statement exactly how the accident occurred and the time he laid off." [1] These circumstances, together with the fact that Twonko did not speak English, are the basis for the estoppel found by the commission. There is no suggestion that the claim which the law required should be filed with the commission was referred to, or that it was even intimated that it should not be filed. The claimant was obliged to give notice to the employer as well as file a claim with the commission. In his testimony it may be noted that he considered his statement of Octboer 20, 1914, to be a notice to the company, not that he thought it a claim to be filed with the commission. It may be that the claimant knew nothing about the procedure under the Workmen's Compensation Law, but his ignorance cannot weaken its provisions and requirements. They are as binding upon him as upon one fully acquainted with all the privileges and obligations of the act. Even if we assume that Bow undertook to waive for his company and the insurance carrier the provisions of section 28 (which is not the fact), yet he had no authority so to do, and such an attempt would not be binding upon the parties to this proceeding. Dailey v. Stoll, 211 N. Y. 74, 105 N. E. 87. The claimant had until July 20, 1915, to file his claim with the commission. The last payment by the insurance carrier of any money for his benefit was on February 6, 1915. During a period, therefore, of five months, the claimant knew that he was receiving no money upon his claim or by virtue of his statement given to Bow. The first letter from his lawyer to the commission is dated August 21, 1915. [2] That the insurance carrier paid the doctors and the infirmary could not amount to estoppel, without some representation by it justifying the claimant in a belief that his claim had been filed or would be filed with the commisison. [3] The law states that the right to compensation shall be forever barred unless within one year after the accident a claim for compensation shall be filed with the commission. These plain provisions cannot be dispensed with by such evidence as we have in this case. Buckles v. State of New York, 221 N. Y. 418, 117 N. E. 811. The order of the Appellate Division should be reversed, and the determination of the State Industrial Commission annulled, and claim dismissed, with costs against the Industrial Commission in this court and in the Appellate Division. Hiscock, C. J., and Chase, Collin, Cuddeback, Hogan, and McLaughlin, JJ., concur. Order reversed, etc. SUPREME COURT OF NEW YORK. SPECIAL TERM, NEW YORK COUNTY. ROBILOTTO BARTHOLDI REALTY CO.* MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW SERVANT ILLEGALLY EMPLOYED-DEFENSE-DEMURRER. Action by administrator of boy under 16, employed in violation of Labor Law, § 93, subd. 2, and killed while engaged in employment enumer * Decision rendered, September, 1918. 172 N. Y. Supp. 328. ated in Workmen's Compensation Law, art. 1, § 2, group 22, brought for benefit of father and next of kin, cannot be maintained; section 11 of latter act providing the exclusive compensation. (For other cases, see Master and Servant, Dec. Dig. § 366.) Action by Frank Robilotto, as administrator of Michael Robilotto, deceased, against the Bartholdi Realty Company. Demurrer to defense overruled. Abraham Rickman, of New York City, for plaintiff. McAvoy, J. The plaintiff's intestate, an infant under the age of 16 years, was killed while in the employ of the defendant, by an injury occurring during such service and employment, through the negligence of the defendant. This action is to recover damages in behalf of the father of said infant and his next of kin because of such death by the wrongful act of the defendant, and in answer to the claim for damages there is set forth a defense which alleges that the subject-matter of the action is not within the jurisdiction of the court, because the Workmen's Compensation Law of the state (Consol. Laws, c. 67), which was in full force and effect at the time the plaintiff's intestate is alleged to have sustained the personal injuries resulting in his death, provided the excluisve compensation for such death. Workmen's Compensation Law, § 11. The defense compasses the business carried on by the defendant within the businesses included in the term "hazardous employments"; that is, that the plaintiff's intestate was engaged in the operation of a passenger elevator, which is an employment enumerated in article 1, section 2, group 22, of the present Workmen's Compensation Act. Besides, it is shown and deemed to be true on this demurrer that the defendant has provided for the benefit of the plaintiff, or in the event of death for the next of kin of his intestate, compensation for injury or death therein in one of the methods prescribed by section 50 of the act, and that therefore the exclusive remedy for such wrongful act resulting in death lies within the relief afforded under such Workmen's Compensation Law. The demurrer goes upon the ground that the employment in which the child was engaged was one prohibited by the public policy of the state declared by the Legislature in section 93 of the Labor Law (Consol. Laws, c. 31), to wit: "Sec. 93. Prohibited Employment of Women and Children. * 2. * * *No child under the age of sixteen years shall be employed or permitted to have the care, custody or management of or to operate an elevator either for freight or passengers." From this basis it is sought to have a holding that the Workmen's Compensation Law is not a remedy to which the infant's next of kin may resort, because the employment contemplated in that act is lawful employment, and as such was not prohibited by express legislative enactment. It is asserted that it would be entirely unreasonable to attribute to the Legislature the intention of providing for compensation for injuries inflicted by an act which it had already prohibited the parties thereto from contracting to make possible. Whether the Workmen's Compensation Law is applicable to an injury resulting from the employment of a person in a capacity in which it is prohibited by law to engage one by reason of sex or infancy has not been determined by our Court of Appeals. The Appellate Division of this court in the Third Department ruled in Ide v. Faul & Timmins (Matter of U. S. Casualty Co). 179 App. Div. 567, 166 N. Y. Supp. 858, that where a claimant was 14 years old and employed in violation of section 93 of the Labor Law, prohibiting the employment of |