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by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued. Such an action must be commenced within two years after the decedent's death. When the husband, wife or next of kin, do not participate in the estate of decedent, under a will appointing an executor, other than such husband, wife or next of kin, who refuses to bring such action, then such husband, wife or next of kin shall be entitled to have an administrator appointed for the purpose of proseucting such action for their benefit."

[1] A civil liability and the right to recover damages for a wrongful act or neglect causing death are created solely by statute. At common law no civil action would lie for causing the death of a human being. Legislative enactment is the exclusive source and boundary of the liability and the remedy. It may create the cause of action, define the period of its existence, and the party by whom and the method in which it shall be enforced, and prescribe the measure of damages and the beneficiaries.

[2] The meaning and intent of section 29 is manifestly not clear and certain through its language. We are therefore bound to search for the legislative intent in such facts and through such rules as may, in connection with the language, legitimately reveal it. If it, as determined, is within the scope or capability of the language, it must be within the statute, however obscurely, imperfectly, or inadequately it is expressed. To effect the intent the language may be freely dealt with. Words may be interpolated or shifted in position or enlarged or restrained in their meaning and operation. The expressed legislative intention is the statute. The courts are bound to enforce enacted legislative intent. Archer v. Equitable Life Assurance Society of the United States, 218 N. Y. 18, 112 N. E. 433; Riggs v. Palmer, 115 N. Y. 506, 22 N. E. 188, 5 L. R. A. 340, 12 Am. St. Rep. 819.

[3-5] The language of the section reveals and expresses the legislative intention to give to the dependents under the law of the employee within the law, killed by the negligence or wrong of another not in the same employ, a cause of action for the death. It declares that his dependents primarily shall elect, in accordance with the rule of the State Industrial Commission, whether to take compensation under the law or to pursue their remedy against the wrongdoer; if they choose the latter, they shall receive under the law only the deficiency, if any, between the amount "of the recovery against" the wrongdoer actually collected and the compensation awardable under the law, and they-his dependents-cannot compromise the cause of action against the wrongdoer at an amount less than the compensation awardable, except upon the approval of the commission, if the state is the insurance carrier, or of the other insurance carrier, if the state is not the insurance carrier. The recovery is for the benefit of the dependents. If, however, his dependents choose primarily to take compensation under the law they his dependents-shall assign the cause of action against the wrondoer, if the state is the insurance carrier, to the state for the benefit of the state insurance fund, or, if another is the insurance carrier, to that other. The last paragraph of the section in connection with the other provisions relating to dependents is an adequate declaration that the assignment of the cause of action shall be made by the dependents. If the language were "the cause of action which they have hereby" or "the cause of action which they shall have" against the wrongdoer, instead of "the cause of action against such other," the legislative bestowal upon the dependents of the cause of action for the death would have been indubitable. The intent to effect the bestowal is as clear as the words we have suggested would make it. The section empowers the dependents to assign such a cause of action, empowers, with a restriction, the dependents to compromise such cause of action, empowers the dependents to elect whether they will enforce or assign it, and constitutes them the sole beneficiaries of it, in case they enforce it. Those provisions are

rot purposeless and meaningless. It must be presumed that an enactment has a purpose and an effect and that no absurd nor vain use of language was adopted. It must receive that construction which will make effective its intent. Matter of Jannicky, 209 N. Y. 413, 103 N. E. 715; Matter of Meyer, 209 N. Y. 386, 103 N. É. 713, L. R. A. 1915C, 615, Ann. Cas. 1915A, 263; Matter of Dowling, 219 N. Y. 44, 113 N. E. 545. Those provisions express that within the legislative mind and comprehension the section provided to the dependents of the employee a cause of action inedpendent of, and not that created by, section 1902, for the negligently caused death. The language discloses that there were, further, within the legislative mind and comprehension these effects; in case the dependents elect to enforce against the wrongdoer the cause of action, they shall pursue, in so far as applicable under the language, the remedy provided in section 1902 of the Code of Civil Procedure. An executor or administrator of the deceased employee, as the representative or agent (Hamilton v. Erie Railroad Co., 219 N. Y. 343, 350, 114 N. E. 399, Ann. Cas. 1918A, 928) of the dependents, may, the dependents having so elected, maintain the action. The action is not maintainable, however, until the dependents have determined that it shall be instituted. The right of action is a property right of all the dependents (Matter of Meekin v. Brooklyn H. R. R. Co., 164 N. Y. 145, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635), and they are the sole beneficiaries of its enforcement. The provisions of section 1903 of the Code of Civil Procedure, relating to the distribution of the damages, are inoperative. The amount of the recovery actually collected, within the amount of the compensation awardable to the dependents under the law, must be distributed as the compensation would have been awarded. The remedy provided in section 1902 is by the language of section 29 peculiar to the enforcement by the dependents of their cause of action of which it is not an integral part. The Legislature confined the pursuit of that remedy to the dependents, in behalf of simplicity and convenience in procedure. In case the dependents elect to assign the cause of action, the assignment creates its ordinary and established effects. It transfers to and vests in the assignee the cause of action. If the assignment is to the state, the cause of action is thereby made the property of the state; if to another, the cause of action becomes by virtue of the assignment the property of that other. In the case at bar the dependents assigned the cause of action to the plaintiff. A cause of action inherently includes and comprehends, in the absence of restrictive language, the right to maintain an action upon the claim or matter which also is inherently included in it. "Cause of action" is the right to prosecute an action with effect. Douglass v. Forrest, 4 Bing. 686. The right to maintain the action may by statute be withheld from the owner of the cause of action and given to another, because of convenience or simplicity in procedure, as is done by the provisions of section 1902, or by the provisions of section 29 that the Industrial Commission may prosecute in behalf of the state the causes of action assigned under the section to, and owned by, the state. It is, however, an elementary and fundamental rule of law and of property that the owner of a cause of action has the right, which is a part of it, in the absence of a valid restriction, to prosecute it in the ordinary and legal method and manner in the courts. There is not related nor applicable to the cause of action of plaintiff any restriction or provision forbidding or disabling him from prosecuting it. He needed no express empowerment, as did the Industrial Commission. The power was in and a part of the assigned cause of action, and became the plaintiff's.

[6] The provision of the Constitution of the state, "The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not be subjec: to any statutory limitation" (article 1, § 18), is not relevant to the determination of the rights arising, through section 29, to the dependents of the deceased employee. The people of the state, in section 19 of article

1 of the Constitution, restricted that provision from disabling the Legislature to enact laws for the payment, in any method it selected, of compensation for death of employees resulting from injuries to them, and to provide that the right of such compensation and the remedy therefor shall be exclusive of all other rights and remedies for death resulting from such injuries. The power to provide that a party who negligently kills an employee under the act shall be liable to the dependents of the employee, as defined by the act, and not to his next of kin, is clearly restored to the Legislature by the later section. See Shanahar v Monarch Engineering Co., 219 N. Y. 469, 114 N. E. 795.

The judgment should be reversed, and the interlocutory judgment be reinstated and affirmed, with costs in this court and in the Appellate Division.

Hiscock, C. J., and Cuddeback, McLaughlin, and Crane, JJ., concur. Chase and Hogan, JJ., dissent.

Judgment accordingly.

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1. MASTER AND SERVANT - WORKMEN'S COMPENSATION LAW-"HAZARDOUS EMPLOYMENT”—“EMPLOYEE."

Night engineer, employed in piano factory, manufacture of pianos being hazardous employment, within Workmen's Compensation Law, § 3, subd. 1, being embraced in section 2, group 16, was an "employee in a hazardous employment," under section 3, subd. 4, defining "employee" as meaning person engaged in one of the occupations enumerated in section 2, or in service of employer whose principal business is that of carrying on "hazardous employment."

(For other cases, see Master and Servant, Dec. Dig. § 361.)

(For other definitions, see Words and Phrases, First and Second Series, Employee.)

3. MASTER AND SERVANT - WORKMEN'S COMPENSATION LAW-EXCLUSIVE CHARACTER OF REMEDY-EXCEPTION. Under Workmen's Compensation Law, §§ 10, 11, remedy of injured servant, or dependents of deceased servant, under statute, is exclusive; no cause of action arising at common law or under Employers' Liability Act, except where employer has failed to secure payment of compensation as provided.

(For other cases, see Master and Servant, Dec. Dig. § 351.)

Appeal from Special Term, New York County.

Action by Sophie Nulle and another, as executors, etc., of Julius Nulle, against Hardman, Peck & Co. From an order denying a motion for judgment on the pleadings, defendant appeals. Order reversed, and motion granted, with leave to plaintiffs to serve an amended complaint.

* Decision rendered, Dec. 13, 1918. 173 N. Y. Supp. 236.

Argued before Clarke, P. J., and Dowling, Smith, Page, and Shearn, JJ.

James J. Mahoney, of New York City (George J. Stacy, of New York City, on the brief), for appellant.

Owen W. Bohan, of New York City, for respondents.

DOWLING, J. The real question involved herein is the sufficiency of the complaint, which defendant claims sets forth no cause of action. The action is brought to recover damages for the death of plaintiff' testator, Julius Nulle, who was a night engineer employed by defendant in its piano factory at 552 West Fifty-Second street, in the city of New York. It is set forth in the complaint that Nulle, while acting as night engineer in defendant's employ on November 5, 1916, in the ordinary course of his employment and under the direction, supervision, and control of defendant, was instructed to dispose of refuse collected in the piano factory, which was of a highly inflammable nature, and was placed in cans to be disposed of by decedent under defendant's supervision; that decedent was directed by defendant, in the ordinary course of his employment, to burn the refuse in defendant's furnace. It is alleged that the furnace was old, worn, defective, and unsafe, to defendant's knowledge, despite which no instructions as to its danger were given by it to Nulle; that the usual and ordinary guards in general use on furnaces of this character were absent; that, because of these conditions, Nulle, while in the performance of his duties as engineer in defendant's employ, and while actually placing the highly inflammable material in the furnace, was severely burned as the result of the ignition of the refuse by a back draft, which in turn set fire to Nulle's clothing, and inflicted injuries from which he died more than a month thereafter. Among the specifications of defendant's negligence are that the furnace was taxed beyond its capacity, and was entirely unsafe and insufficient for the work for which it was used; that guards were absent; that there was no reasonable.or proper care, test, or inspection; that the Employers' Liability Act (Consol. Laws, c. 31, §§ 200-204) had not been complied with,. nor had chapter 657, Laws of 1906; that the furnace used in an unsafe and improper manner; that Nulle's death was due to the defective condition of the ways, works, machinery, plant, tools, and implements, owned, operated, and controlled by defendant, which condition could have been discovered by defendant by the use of reasonable and proper care; and that defendant had knowledge thereof or could have discovered the same with reasonable diligence. It is further verred that the notice required by the Employer's Liability Act had been duly given.

Defendant contends that the complaint is insufficient, and does not state facts sufficient to constitute a cause of action, inasmuch as under its allegations the only remedy available was that provided by the Workmen's Compensation Act (Consul. Laws, c. 67), whch is exclusive, and that the only exception is to be found in case that employer has failed to secure the statutory compensation as provided in the act, in which event the plaintiff must set forth in his complaint the necessary allegations to bring himself within the exception. In this contention we think the defendant is correct.

[1-4] The complaint alleges that decedent was employed in a piano factory, and the manufacture of pianos is a hazardous employment, within the meaning of the Workmen's Compensation Law (section 3, subd. 1), being embraced in group 16 as defined in section 2 thereof. Decedent was an employee in a hazardous employment, under the terms of section 3, subd. 4. His status as an employee within the terms and protection of this statute is fixed by the allegations of the complaint. Section 10 of the Workmen's Compensation Law, so far as material, at the time of plaintiff's injury, reads as follows:

"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 resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment, without regard to fault as a cause of such injury, except where the injury is occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty. * *

Section 11 thereof at the same time provided:

The liability of an employer prescribed by the last proceeding section shall be exclusive, and in the place of any other liability whatsoever, to such employee, his personal representatives, husband, parents, dependents or next of kin, or any one otherwise entitled to recover damages, at common law or otherwise on account of such injury or death, except that if an employer fail to secure the payment of compensation for his injured employees and their dependents as provided in section 50 of this chapter, an injured employee or his legal representatives 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 account of such injury."

Thus by the provisions of the Workmen's Compensation Law, in effect at the time of decedent's death, under the state of facts shown by the complaint, deceased was an employee of defendant engaged in a hazardous employment, and, having received injuries arising out of and in the course of his employment, the remedy provided by the act became exclusive, and no cause of action arose either at common law or under the Employers' Liability Act. The only exception to this rule would be in case the employer had failed to secure the payment of compensation for his injured employees and their dependents as provided in the act. But this is a matter for the plaintiff to plead, if he desires to seek a recovery outside the act. That the remedy provided under the act is exclusive, where it applies, was held in Shanahan v. Monarch Engineering Co., 219 N. Y.. 469, 114 N. E. 795. That the burden is upon the plaintiff to set forth the facts showing that the act did not apply is clearly indicated in the opinion of this court in Shinnick v. Clover Farms Co., 169 App. Div. at page 237, 154 N. Y. Supp. 423:

"There is no allegation that defendant has failed to secure the payment of compensation for his injured employees or their dependents as provided in section 50 of the act (as amended by Laws 1914, c. 316), or that plaintiff has, for that reason, elected to sue in the courts. The question we have to consider, therefore, is whether the Workmen's Compensation Law provides compensation for such an injury as that which plaintiff has suffered.

This case was cited by the court as its authority for its decision in Nilsen v. American Bridge Co., 176 App. Div. 915, 162 N. Y. Supp. 1133, affirmed 221 N. Y. 12, 116 N. E. 383.

Inasmuch as plaintiffs have failed to set forth the necessary factsshowing that they come within the exception, and that they are not limited to the exclusive remedy provided by the act, the complaint was demurrable, and the motion for judgment should have been granted.

The order appealed from will therefore be reversed, with costs, and the motion for judgment on the pleadings in favor of the defendant will be granted, with $10 costs, with leave to the plaintiffs to serve an amended complaint within 20 days upon payment of said costs. All concur.

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