Kiernan, 49 N. Y. 164." McNutt v. Hilkins, 80 Hun. 235, 239, 29 N. Y. Supp. 1047, 1050. "The principles governing election of remedies are necessarily based upon the supposition that two or more remedies exist. If in fact or in law only one remedy exists, there can be no election by the pursuit of another and mistaken remedy. It is a well-established rule that the choice of a fancied remedy that never existed, and the futile pursuit of it, either because the facts turn out to be different from what the plaintiff supposed, though the first action proceeds to judgment, does not preclude the plaintiff from thereafter invoking the proper remedy." 9 Ruling Case Law, p. 962, § 9. "The question depends for its answer upon the law of election of remedies. Where two inconsistent remedies, proceeding upon irreconciable claims of right, are open to a suitor, the choice of one bars the other. But, to have that effect, the remedies must be inconsistent.' Ratchford v. Cayuga Co. Cold Storage & W: Co., 217 N. Y. 565, 568, 112 N. E. 447, 448 (L. R. A. 1916E, 615). Woodward J., concurs. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD- Department. KOLB BRUMMER ET AL.* 1. INSURANCE-CASUALTY INSURANCE-LIABILITY OF IN SURER. Under an employers' liability insurance policy, providing that no assignment or change of interest should bind the company, unless its consent be indorsed on the policy, where insured's wife inherited and carried on insured's business after his death, insurance company was not, liable for an injury.occurring to servant in such business after she had sent the policy to the company to be transferred, but before insurer indorsed the transfer of interest, although the insurer, without knowledge of the injury to servant, afterwards accepted the balance of earned premiums. (For other cases, see Insurance, Dec. Dig. § 392[8].) 2. INSURANCE "CANCELLATION"-TRANSFER OF POLICY. Defense of insurance carrier to claim of injured employee that injury to employee occurred after death of insured employer, and prior to insurance carrier's indorsement of consent to transfer of policy to insured's successor in business, did not constitute a "cancellation" of the insurance, contract, within Workmen's Compensation Law, § 54, subd. 5, requiring notice of cancellation. (For other cases, see Insurance, Dec. Dig. § 232.) (For other cases, see Words and Phrases, First and Second Series, Cancellation.) Kellogg, P. J., and Woodward, J., dissenting. * Decision rendered, November 22, 1918. 173 N. Y. Supp. 72. Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Act by John Kolb to obtain compensation for injuries, opposed by Meta Brummer, employer, and the New Amsterdam Casualty Company, insurance carrier. There was an award of compensation, and the insurance carrier appeals. Award reversed as to insurance carrier. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Frederick Mellor, of New York City, for appellant. 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. Richard Brummer, the husband of the defendant Meta Brummer, was engaged in the business of trucking. He held a policy issued by the defendant New Amsterdam Casualty Company, of date August 31, 1916, which ran for one year, and upon which he had paid the estimated premium. He died June 28, 1917, leaving a will by which he gave all his property to his wife. His wife took charge of and conducted his business for about two weeks during his last sickness, and after his death continued the business in the same way. About the middle of July, 1917, as she testifies, she informed the broker through whom the insurance was procured of the death of her husband, and delivered to him the policy, to mail the same to the insurer. He wrote on the outside of the policy the words: "Kindly transfer this insurance to Meta Brummer, and return this policy to me. Buxbaum." -and mailed the policy to the insurance company, as he testified. The insurer attached to the policy a writing, dated August 22, 1917, as follows: "The interest in this policy is hereby transferred, from 12 o'clock noon of this date, to Meta Brummer." On the preceding day, August 21, 1917, the claimant was in the employ of Meta Brummer, and about 9 o'clock in the morning suffered an accidental injury to the index finger of his right hand, which resulted in the loss of the finger. On August 23, 1917, Meta Brummer, as employer, filed a claim for compensation. On October 8, 1917, the company presented a bill to her for additional insurance premium under said policy, which she paid in full. The policy had expired the August preceding. The insurance company claims it was not notified of the accident until November 12, 1917. She made a report of the injury August 23, 1917, as the employer, and thereafter an award of compensation was made to the claimant against her as an employer. On her application the award was opened, a rehearing had, and an award made against her and the New Amsterdam Casualty Company, as insurer, from which this appeal has been taken. The policy contained the following condition: "Assignment. Condition J. No assignment or change of interest under this policy shall bind the company, unless its consent shall be indorsed hereon or attached hereto, signed by a duly authorized officer of the company." [1] No act was done by Meta Brummer in reliance upon the belief that the company had consented to the transfer of the policy to her, which would estop the appellant. The liability of the insurer did not exist as to Meta Brummer until it had made a binding contract with her. It was not an insurance of property, but against personal liability, and hence the insurance was personal. The performance of this condition of the policy was essential to create liability against the insurer to another than the person to whom the policy was issued. An application for insurance to secure compensation would not charge the insurer until a contract was made. I do not think the collection of the balance of the earned premium estops the insurer from contesting liability under the contract. The bill was not presented until October 8th, and the company had no knowledge of the accident until November 12. [2] Nor do I think that section 54, subd. 5 (Consol. Laws, c. 67) is effective. This was not a cancellation of an insurance contract, within the meaning of that term as used in that section. The parties had the right to insert any lawful conditions in the contract. Allen et al. v. German-American Ins. Co. of N. Y., 123 N. Y. 6, 13, 25 N. E. 309; Dwight v. Germanic Life Ins. Co., 103 N. Y. 341, 8 N. E. 654, 57 Am. Rep. 729; Gans v. Etna Life Ins. Co., 214 N. Y. 326, 108 N. E. 443, L. R. A. 1915F, 703. [3] The defendant insurance company might have had a good reason for not assenting to a transfer of interest. The management of the business had changed, and they were no longer protected by the oversight of the husband. While the commission has the power to determine whether the policy still existed, it must determine that question on recognized principles of law. Matter of Skoczlois v. Vincour, 221 N. Y. 276, 116 N. E. 1004. The award must be reversed, so far as it is against the New Amsterdam Casualty Company Cochrane and Henry 1 Kellogg, JJ., concur. JOHN M. KELLOGG. P. J. (dissenting). The Employers' Liability Law is designed to charge upon the hazardous employment the risks flowing from it, and to protect the employee therefrom. Security for compensation is not required for the benefit of the employer, but solely for the benefit of the employee. It is a burden cast upon the employer and the business, to make sure to the employee the payment of compensation. It is a misdemeanor for the employer to carry on the business without insurance, and, when the insurance is effected, notice of the fact is given to the employee, so that he may work in confidence that compensation which he may be entitled to will be paid. Section 51. The insurance is more than a provision to reimburse the employer for the amounts paid by him, as the liability of the company is not affected by his insolvency or bankruptcy. Subdivision 3, § 54. The insurance cannot be canceled "within the time limited in such contract for its expiration," except after notice of 10 days to be served upon the employer and the commission. Section 54, subd. 5. The object of this is to enable the commission to see the the law is obeyed, and that no interval shall elapse during which the security for the employee does not exist. If the insurance is in the state fund, it cannot be withdrawn except upon 30 days' notice to the commission, and after other security for the employees has been provided. Section 100. I think it follows, from these and the other provisions of the law, that when security is given for a particular time the employee cannot be deprived of its benefits, except in the manner provided by law, and by cancellation of the policy on notice to the commission. It would not be within the spirit of the law to permit the employer and the insurer to vacate the policy, and deprive the employee of security without any notice to him or the commission. This policy never was canceled in the manner provided by law. The loss of the injury happened during the term of the contract, and the company is liable to the employee. The insurance company is in the same position as the state fund, with a continuing liability until the policy is canceled, as required by the law. There is nothing in the policy to the contrary. It does not provide that it shall be void if the ownership of the business changes. It simply provides that an assignment or change of interest shall not be binding on the company without its written consent. At the issuing of the policy an initial premium is paid, with the understanding that from time to time the pay roll may be examined, and additional premiums may be required and paid by the employer. If the assignment is not binding upon the company, it may treat the original employer as still liable to it for the performance of every condition of the policy; þut the employer by assignment or death cannot deprive the employee of his surety and free the company from liability. In this case the widow of the employer, who was also the executrix, residuary legatee, and devisee under his will, continued the business. She delivered the policy to the broker, who obtained it, with the request that the company consent to the transfer to her. It was immediately forwarded by him to the company, and was received by it about July 13th for transfer. It was then its duty to give or refuse its consent. It knew that the business, could not be conducted without insurance. It could not retain the policy for a month, and the day after the loss consent to the transfer, to take effect on that day. By adjusting the premiums with the widow after the loss, and exacting from her the full carrying charges from the death of the husband, fairly recognizes that the policy was in existence all of the time, and renders it inequitable for it now to assert that for the month which it collected the premium it had elected to treat the policy as not in force. The consent should be treated as made as of the day when it was the duty of the company to make it or refuse it. By making it the insurer showed its approval of the risk. The approval may be treated as relating back to the time when the policy was received; the date of the consent being treated as surplusage. I favor an affirmance. Woodward, J., concurs. SUPREME COURT OF NEW YORK. WOLFF V. FULTON BAG & COTTON MILLS.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-MINORS. The Workmen's Compensation Act is not a bar to a common-law action for damages by an infant, employed in violation of Penal Law, § 1275, and Labor Law, §§ 70, 93. (For other cases, see Master and Servant, Dec. Dig. § 352.) 2. MASTER AND SERVANT-INJURIES TO SERVANT-LEGALITY OF EMPLOYMENT. Violation of Labor Law, § 81, that machinery of every description shall be properly guarded, etc., is evidence of negligence, even in an action by an infant illegally employed under sections 70, 93. (For other cases, see Master and Servant,, Dec. Dig. § 121[2].). * Decision rendered, December 6, 1918., 173 N. Y. Supp. 75. Appeal from Trial and Special Term, Kings County. Action by Mary. Wolff, an infant, etc., by Nora Wolff, her guardian ad litem, against the Fulton Bag & Cotton Mills. From a judgment dismissing the complaint, and an order granting defendant's motion for judgment on the pleadings, plaintiff appeals. Reversed, and remitted to Supreme Court for trial. Argued before Thomas, Mills, Putnam, Kelly; and Jaycox, JJ. Henry M. Dater, of Brooklyn (Jay S. Jones, Edward J. Fanning, and L. Victor Fleckles, all of Brooklyn, on the brief), for appellant. James J. Mahoney, of New York City (George J. Stacy, of New York City, on the brief), for respondent. KELLY, J. The defendant moved for judgment upon the pleadings, consisting of the complaint, the answer, and a reply, compelled by the defendant. The affirmative allegations of the defendant in the third defense pleaded, concerning the business carried on by it, the nature of the plaintiff's work in the defendant's factory, and the happening of the accident, amplify to some extent the formal allegations in the complaint. All of these allegations are therefore to be considered in passing upon the questions presented by the appeal. The complaint alleges, and it is admitted and affirmatively alleged in the answer, that defendant is a corporation engaged in the business of manufacturing burlap and cotton bags in Brooklyn, N. Y., maintaining and operating power presses; that on December 18, 1916, the plaintiff was working as an operator on one of defendant's said presses, and that she sustained accidental personal injuries while so employed by having her hand crushed and amputated in the press. The complaint alleges that on the day the accident happened the plaintiff was under the age of 16 years, that the infant plaintiff was employed by the defendant to operate the machine, and that her injuries were caused by the negligence of the defendant and without negligence on the part of the plaintiff. It charges that the employment of plaintiff was unlawful, and that defendant had failed to procure an employment certificate provided for in the Labor Law. It is also alleged in the complaint that the machine at which plaintiff was working had no guard as required by statute, that it was the duty of defendant to provide the plaintiff with a reasonably safe place to work and a reasonably safe machine with which to perform her work, and that defendant failed and neglected to perform its duty, and allowed the machine to become dangerous and defective, in that it was not equipped with any proper or sufficient guard. The plaintiff, in addition, alleges facts showing liability of defendant under the so-called employers' liability sections of the Labor Law (chapter 31, Consolidated Laws, 88 200-204), and alleges service upon defendant of the notice required by that statute. The plaintiff, directed to reply to the new matter set up as a defense (Code of Civil Procedure, § 516), admitted defendant's affirmative allegation as to its business, and operation of power presses, also that at the time of the accident plaintiff was employed in defendant's place of business as an operator and feeder of one of said printing presses. The defendant pleaded as part of its third separate defense, that exclusive compensation for any injuries sustained by plaintiff while employed in defendant's factory was provided for in the Workmen's Compensation Law (Consol. Laws, c. 67), and averred that it had procured insurance and was insured pursuant to section 50 of that law, and had otherwise complied with the statute so as to secure compensation to its employees for injuries sustained. In plaintiff's reply she denied that she was limited to the compensation provided by the Workmen's |