SUPREME COURT OF NEW YORK. BAILEY COLUMBIAN ROPE CO. et al.* 1. MASTER AND SERVANT - WORKMEN'S COMPENSATION COMMUTATION. State Industrial Commission cannot, under Workmen's Compensation Law, § 27, direct payment to state insurance fund of present value of future installments of compensation awarded to dependent mother of deceased employee, commuted on the basis that such an award is of value equal to a life award, in view of section 16, subd. 4, providing that award to dependent mother is only payable during dependency. (For other cases, see Master and Servant, Dec. Dig. § 386[4].) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION – COMMUTATION. The basis for commutation fixed by Laws 1917, c. 705, providing that commutations under Workmen's Compensation Law, § 27, shall be upon the basis of the Survivorship Annuitants' Table of Mortality and the Remarriage Tables of the Dutch Royal Insurance Institution, would not apply to an award to a mother during her dependency. (For other cases. see Master and Servant. Dec. Dig. § 386[4].) Appeal from State Industrial Commission. Proceeding by Edith Bailey, on behalf of herself, brother, and sister` of Harry Bailey, deceased, for compensation under the Workmen's Compensation Law, against the Columbian Rope Company, employer, and the American Mutual Liability Insurance Company, insurance carrier. From a decision of the State Industrial Commission, directing payment to the State Insurance Fund, under section 27 of the Workmen's Compensation Law; of the present value of future installments of compensation awarded to the dependent mother of said deceased, the employer and insurance carrier appeal. Reversed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Jeremiah F. Connor, of New York City, for appellants. Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City (E. C. Aiken, of Albany of counsel), for respondent State Industrial Commission. JOHN M. KELLOGG, P. J. By subdivision 4 of section 16 of the Workmen's Compensation Law (Consol. Laws, c. 67), an award to a dependent mother is only payable during her dependency. [1] In Adams v. New York, Ontario & Western R. R. Co., 175 App. Div. 714, 161 N. Y. Supp. 919, and 220 N. Y. 579, 114 N. E. 1046, it was held that the commission could not commute future payments directed to be made to a widow during widowhood. After that decision it was pro * Decision rendered, Nov. 13, 1918. 172 N. Y. Supp. 566. vided, by chapter 705 of the Laws of 1917, that commutations under section 27 shall be upon the basis of the Survivorship Annuitants' Table of Mortality and the Remarriage Tables of the Dutch Royal Insurance Institution. That amendment was intended to permit the commutation of an award payable to a widow during widowhood, and to fix a basis for such commutation. But that basis would not apply to an award during dependency. Neither would a life table furnish any basis for such commutation. [2] It is evident that the commission treated the award in this case as one payable during life, but by subdivision 4 of section 16 of the Workmen's Compensation Law it continues only during dependency. The commission cannot determine that such an award is of value equal to a life award and compute it on that basis. The appeal, therefore, is governed by the Adams Case. The decision should be reversed. All concur. SUPREME COURT OF NEW YORK. BALK QUEEN CITY DAIRY CO. et al.* MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW -HAZARDOUS EMPLOYMENT-“HAZARDOUS OCCUPA TION." A superintendent of wholesale dairy route, who left employer's place of business to instruct a new driver, traveling by street railway, and who, on alighting from car, was killed by an automobile, was not at such time engaged in a "hazardous" occupation, within Workmen's Compensatoin Law, or in service of an employer whose principal business was hazardous. (For other cases, see Master and Servant, Dec. Dig. § 361.) (For other definitions, see Words and Phrases, First and Second Series, Hazardous.) Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Law (Consol. Laws, c. 67) by Estelle M. Balk to obtain compensation for the death of Leo P. Balk, opposed by the Queen City Dairy Company, employer, and the American Mutual Compensation Insurance Company, insurer. Compensation was awarded by the State Industrial Commission, and the employer and insurer appeal. Award reversed, and claim dismissed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. * Decision rendered, Nov. 13, 1918. 172 N. Y. Supp. 471. Jeremiah F. Connor, of New York City, for appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent. Robert W. Bonynge, of New York City, for State Industrial Commission. LYON, J. The deceased, Leo P. Balk, was employed by the Queen City Dairy Company as the superintendent of its wholesale routes. On October 20, 1916, he left his employer's place of business to go upon one of the routes, where there was a new driver, in order to familiarize the driver with the route. In order to reach the route, he was required to travel by street railroad car. In getting off the car, a Ford automobile struck him in the left hip and ran him against a telephone pole, and he sustained injuries which resulted in his death, Novemebr 2, 1916. In so The award must be reversed, for the reason that Leo P. Balk was not at the time engaged in a hazardous occupation. He was not in any way engaged in operating a wagon. Glatzl v. Stumpp, 220 N. Y. 71, 114 N. E. 1053. He was merely alighting from a street railway car. doing he met with the accident which resulted in his death. He was not in the service of an employer whose principal business was carrying on or conducting a hazardous business. The award must be reversed, and the case dismissed. All concur. SUPREME COURT OF NEW YORK. CIMMINO V. JOHN T. CLARK & SON ET AL.* 1. ADMIRALTY-JURISDICTION-INJURY TO STEVEDORE. The work of loading and unloading ships is maritime, as regards jurisdiction of claim for personal injury therein. (For other cases, see Admiralty, Dec. Dig. § 20.) 2. ADMIRALTY-WROKMEN'S COMPENSATION ACT-INJURY TO STEVEDORE-ADMIRALTY JURISDICTION. While, when enacted, Workmen's Compensation Law, so far as making it applicable to longshore work in loading and unloading cargoes, was unconstitutional, as an invasion of admiralty jurisdiction, it became effective in that respect, without re-enactment, when by Act Cong. Oct. 6, 1917, § 2, amending Judicial Code, §§ 24, 256 (U. S. Comp. St. 1916, §§ 991[1]-991[25], 1233), recourse to rights and remedies under state Workmen's Compensation Law was permitted. (For other cases, see Admiralty, Dec. Dig. § 20.) * Decision rendered, Nov. 13, 1918. 172 N. Y. Supp. 478. 3. MASTER AND SERVANT - WORKMEN'S COMPENSATION LAW-NOTICE OF CLAIM-PRESUMPTION. The point not having been raised before the commission, it will, by provision of Workmen's Compensation Law, § 21, be presumed notice of claim was given. (For other cases, see Master and Servant, Dec. Dig. § 417[5].) Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Law by Vincenzo Cimmino for compensation to himself, opposed by John T. Clark & Son, employer, and the Fidelity & Casualty Company, of New York, insurance carrier. From an award of the State Industrial Commission, the employer and insurance carrier appeal. Affirmed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Nadal, Jones & Mowton, of New York City (Edward P. Mowton, of New York City, of counsel), for appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent. Robert W. Bonynge, of New York City, for State Industrial Commission. LYON, J. [1, 2] The question at issue upon this appeal is whether the claimant, being engaged in the performance of a maritime contract at the time he sustained his injuries, should have been denied compensation. Qn February 26, 1918, the claimant, who was a stevedore at work on board a ship lying at Twenty-ninth street, Brooklyn, N. Y., slipped on the deck, facturing the distal end of the radius of his wright wrist. The work of loading and unloading a ship is as much maritime in its nature as the work of navigating the vessel. Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157. Following the decision of Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451. Ann. Cas. 1917E. 900, Congress amended section 24 and section 256 of the Judicial Code (Act March 3, 1911, c. 231 36 Stat. 1091-1094, 1160 [U. S. Comp. St. 1916, §§ 991(1)-991 (25), 1233]), by Act Oct. 6, 1917, c. 97, 40 Stat. 395, § 2, as follows: "Third. Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it, and to claimants the rights and remedies under the * * compensation law of any state." Following this action of Congress, the Legislature of the state of New York on April 17, 1918, by chapter 249, re-enacted groups 8 and 10 of section 2 of chapter 41 of the Laws of 1914, as amended by Laws 1916, c. 622, and Laws 1917, c. 705, which specified "longshore work, including the loading or unloading of cargoes," as one of the hazardous occupations. We do not think it was necessary to re-enact the provisions of the New York statute to make them effective as of October 6, 1917. Veasey v. Peters, 142 La. 1012, 77 South. 948. As was said by the New Jersey Court of Errors and Appeals, in Allison v. Corker et al., 67 N. J. Law, 596, 52 Atl. 362, 60 L. R. A. 564: "But I am prepared to go further, and hold that an unconstitutional statute is nevertheless a statute; that is, a legislative act. Such a statute is commonly spoken of as void. I should prefer to call it unenforceable, because in conflict with a paramount law. * * * An unconstitutional statute is not merely blank paper. The solemn act of the Legislature is a fact to be reckoned with. Nowhere has power been vested to expunge it or remove it from its proper place among statutes." The New York statute came into force the moment the amendatory act of Congress was passed. "While Congress, in the exercise of its power to regulate commerce, * can legislate on that subject as well in ports and harbors as in the high seas; but so doing it does not repeal, but suspends, state law upon the subject, and when the act producing this result is repealed, or so modified as to permit the operation of the state law, it becomes again valid and in force [citing Sturgis v. Spofford, 45 N. Y. 446]." Henderson v. Spofford, 59 N. Y. 131; Anderson v. Pacific Coast S. S. Co., 225 U. S. 197, 32 Sup. Ct. 626, 56 L. Ed. 1047. [3] As to the claim that no written notice was given within ten days, as required by the statute, the point was not raised before the Commission. It is therefore presumed to have been given. Section 21. The award should be affirmed. All concur. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD Department. In re COLON. Appeal of AMERICAN LINOLEUM MFG. CO. et al.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW "DUE NOTICE" OF INJURY. "Due notice" to an employer of injury to his servant, being such a notice as is required by Workmen's Compensation Law, § 18, means a notice given in the manner and to the appropriate person specified. (For other cases, see Master and Servant, Dec. Dig. § 398.) (For other definitions, see Words and Phrases, First and Second Series, Due Notice.). 2. MASTER AND SERVANT - WORKMEN'S COMPENSATION LAW-DUE NOTICE TO EMPLOYER. Injured servant's informal statement in familiar style as to injury received, directed and delivered to assistant foreman, with request that servant's wages be paid to messenger, foreman not being person to whom notice of Workmen's Compensation Law, § 18, might be given, was not "due notice" to employer, required by section. (For other cases, see Master and Servant, Dec. Dig. § 398.) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW-AWARD DESPITE FAILURE OF NOTICE-FINDINGS. If injured servant's failure to give notice to employer, required by Workmen's Compensation Law, § 18, did not result in prejudice to employer and insurer, Industrial Commission, before making award, should make appropriate findings. (For other cases, see Master and Servant, Dec. Dig. § 416.) * Decision rendered, Nov. 13, 1918. 172 N. Y. Supp. 475, |