CONSTITUTIONAL PROVISION

ARTICLE I OF THE CONSTITUTION

19. Nothing contained in this constitution shall be construed to limit the power of the legislature to enact laws for the protection of the lives, health, or safety of employees; or for the payment, either by employers, or by employers and employees or otherwise, either directly or through a state or other system of insurance or otherwise, of compensation for injuries to employees or for death of employees resulting from such injuries without regard to fault as a cause thereof, 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; or for the adjustment, determination and settlement, with or without trial by jury, of issues which may arise under such legislation; or to provide that the right of such compensation, and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries; or to provide that the amount of such compensation for death shall not exceed a fixed or determinable sum; provided that all moneys paid by an employer to his employees or their legal representatives, by reason of the enactment of any of the laws herein authorized, shall be held to be a proper charge in the cost of operating the business of the employer.

This section, adopted November 4, 1913, and effective, January 1, 1914, overrides section eighteen of article one of the Constitution relative to the right of action to recover damages for injuries resulting in death: Shanahan v. Monarch Engineering Co., 219 N. Y. 469.

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THE WORKMEN'S COMPENSATION LAW

CHAPTER 816 OF THE LAWS OF 1913, AS AMENDED AND RE-ENACTED BY CHAPTER 41 OF THE LAWS OF 1914, CONSTITUTING CHAPTER 67 OF THE CONSOLIDATED LAWS, AS AMENDED.

[This New York Workmen's Compensation Law has been declared constitutional by the Supreme Court of the United States: New York Central R. R. Co. v. White, 243 U. S. 188. Its constitutionality had previously been upheld by the Court of Appeals of New York in Jensen v. Southern Pacific Co., 215 N. Y. 514, and Walker v. Clyde Steamship Co., 215 N. Y. 529. An older, voluntary plan of workmen's compensation is embodied in Labor Law, §§ 204– 212, still upon the statute books. The Workmen's Compensation Law should be construed broadly and liberally: Matter of Petrie, 215 N. Y. 335; Costello v. Taylor, 217 N. Y. 179; Winfield v. N. Y. C. & H. R. R. R. Co., 168 App. Div. 351; 216 N. Y. 284; Moore v. Lehigh Valley R. R. Co., 169 App. Div. 177; 217 N. Y. 27; Rheinwald v. Builders' Brick & Supply Co., 168 App. Div. 425: McQueeney v. Sutphen & Myer, 167 App. Div. 528.]

Article 1. Short title, application, definitions (§§ 1-3). 2. Compensation (§§ 10–34).

2-A. Occupational diseases (§§ 37-49b).

3. Security for compensation (§§ 50-54).

4. State workmen's compensation commission (§§ 60-77).

5. State insurance fund (§§ 90-106).

6. Miscellaneous provisions (§§ 110–119).

7. Laws repealed; when to take effect (§§ 130-131).

ARTICLE 1

SHORT TITLE; APPLICATION; DEFINITIONS

Section 1. Short title.

2. Application.

3. Definitions.

Section 1. Short title.- This chapter shall be .known as the "workmen's compensation law.”

§ 2. Application.- Compensation provided for in this chapter shall be payable for injuries sustained or death incurred by employees engaged in the following hazardous employments:

Compare the notes to the several subdivisions under § 3. Compare also list of occupational diseases under § 49-a. For rearrangement of the groups of § 2 by the Commission compare § 95 and foot-note thereunder. In determining whether or not the employment in a given claim case comes within a group the courts reject far-fetched meanings and apply the rule of ejusdem generis: Wilson v. [5]

Dorflinger & Sons, 218 N. Y. 84; Aylesworth v. Phoenix Cheese Co., 170 App. Div. 34; DeLaGardelle v. Hampton Co., 167 App. Div. 617; Tomassi v. Christensen, 171 App. Div. 284; Grasell v. Brodhead, 175 App. Div. 874.

Group 1. The operation, including construction and repair, of railways operated by steam, electric or other motive power, street railways, and incline railways, but not their construction when constructed by any person other than the company which owns or operates the railway, including work of express, sleeping, parlor and dining car employees on railway trains. Compare 114, Interstate commerce.

Group 2. Construction, repair and operation of railways not included in group 1. [Group 2 am'd by L. 1916, ch. 622.]

1 Word "repair," inserted by L. 1916, ch. 622. Compare 114, Interstate commerce.

Group 3. The operation, including construction and repair, of car shops, machine shops, steam and power plants, and other works for the purposes of any such railway, or used or to be used in connection with it when operated, constructed or repaired by the company which owns or operates the railway. Compare 114, Interstate commerce.

Group 4. The operation, including construction and repair of car shops, machine shops, steam and power plants, not included in group three. Compare 114, Interstate commerce.

Group 5. The operation, including construction and repair, of telephone lines and wires for the purposes of the business of a telephone company, or used or to be used in connection with its business, when constructed or operated by the company.

Compare 114, Interstate commerce.

Group 6. The operation, including construction and repair, of telegraph lines and wires for the purposes of the business of a telegraph company, or used or to be used in connection with its business, when constructed or operated by the company.

Compare 114, Interstate commerce.

Group 7. Construction or repair of telegraph and telephone lines not included in groups five and six. [Group 7 am'd by L. 1916, ch. 622.] 1 Words "or repair," inserted by L. 1916, ch. 622. Compare § 114, Interstate commerce.

Group 8. The operation, within or without the state, including repair, of vessels other than vessels of other states or countries used in interstate or foreign commerce, when operated or repaired by the company; 1marine wrecking. [Group 8 am'd by L. 1916, ch. 622; and re-enacted by L. 1918, ch. 249.] 1 Words "marine wrecking," added by L. 1916, ch. 622.

Compare 114, Interstate commerce, and group 10, below, note on longshore work. This group and group 10, below, are invalid because in conflict with Section 2 of Article III of the Constitution of the United States which confers admiralty or maritime powers exclusively upon the Federal government: Knickerbocker Ice Co. v. Stewart, U. S., May 17, 1920; Southern Pacific Co. v. Jensen, 244 U. S. 205; Clyde Steamship Co. v. Walker, 244 U. S. 255. In Knickerbocker Ice Co. v. Stewart the United States Supreme Court has held unconstitutional the Act of October 6, 1917 (65th Cong., 1st Sess., ch. 97), whereby Congress sought to save to claimants admiralty rights and remedies under state workmen's com

pensation laws. Employers' liability law therefore governs accidents not only to seamen proper but to longshoremen on docks, carpenters temporarily working upon vessels and dry dock employees, until such time as Congress may enact a Federal compensation law for maritime workers: Doey v. Howland Co.. 182 App. Div. 152; 224 N. Y. 30; Anderson v. Johnson Lighterage Co., 182 App. Div. 152; 224 N. Y. 539; Keator v. Rock Plaster Mfg. Co., 182 App. Div. 152; 224 N. Y. 540; Moran v. International Elevating Co., 14 S. D. R.* 623, 5 Bul.† 14; 186 App. Div. 929; McCracken v. Eastern Gravel Corp., 14 S. D. R. 659, 3 Bul. 53; 186 App. Div. 932. Entire history of the subject, covering a period of six years, is in Special Bulletins, No. 87, pp. 320-379, and No. 97, pp. 17, 18, 243-259, excepting opinions and decisions of the United States Supreme Court in Knickerbocker Ice Co. v. Stewart and Appellate Division reversals of July 8, 1920, based thereon, in the cases of McAllister v. Newtown Creek Towing Co.; Conroy v. Mott Haven Towing Line; Triscari v. Huron Stevedoring Corp.; and Dworkowitz v. Harlem River Towboat Line.

Injury to an employee loading an ocean steamship owned by a railroad is not covered by interstate commerce laws; Southern Pacific Co. v. Jensen, 244 U. S. 205. "Operation" includes loading and unloading; when the employer and owner is a New York corporation, the presumption is that the vessel is not one of another State or country: Edwardsen v. Jarvis Lighterage Co. 168 App. Div. 368. Accident at sea to a New York employee of a foreign corporation is not compensatable: Charlton v. Hilton-Dodge Trans. Co., 178 App. Div. 385; Patterson v. Lehigh Valley Trans. Co., 19 S. D. R. 453; App. Div. - May 5, 1920.

Concerning compensation of longshoremen injured on or in connection with "vessels of other states or countries used in interstate or foreign commerce " compare Edwardsen v. Jarvis Lighterage Co., 168 App. Div. 368; Howland v. Compagnie Generale Transatlantique, 19 S. D. R. 450; 188 App. Div. 946; Carlson v. Cunard S. S. Co., Death Case, No. 9852; 189 App. Div. 881; Clemens v. Turner & Blanchard, 5 Bul. 106.

Group 9. Shipbuilding, including construction and repair in a ship-yard or elsewhere, not included in group eight.

See under group 8, notes on admiralty.

Group 10. Longshore work, including the loading or unloading of cargoes or parts of cargoes of grain, coal, ore, freight, general merchandise, lumber or other products or materials, or moving or handling the same on any dock, platform or place, or in any warehouse or other place of storage. [Group 10 re-enacted by L. 1918, ch. 249.]

Compare § 114, Interstate commerce; also gr. 8, above, notes on admiralty. The specific enumeration of longshore work in this group excludes such work from group 8: Jensen v. Southern Pacific Co., 215 N. Y. 519, 520.

The special business of supplying watchmen for cargoes is not longshore work: Oberg v. McRoberts & Co., 6 S. D. R. 386; 175 App. Div. 1.

Rag picking in a refuse dump on the shore is not longshore work: Tomassi v. Christensen, 171 App. Div. 284, but compare addition of "garbage sorters to group 13, below.

Group 11. Dredging, subaqueous or caisson construction 1or repair, and pile driving. [Group 11 am'd by L. 1916, ch. 622.]

1 Words "or repair," inserted by L. 1916, ch. 622. Compare § 49-a, subd. 16, compressed air illness.

Driving sheeting for a jetty to protect baths on a water front is pile driving: Mazzarisi v. Ward & Tully, 4 S. D. R. 443; 170 App. Div. 868.

Group 12. Construction, installation, 1repair or operation of electric light and electric power lines, dynamos, or appliances, and power transmission lines. [Group 12 am'd by L. 1916, ch. 622.]

"S. D. R." is an abbreviation for State Department Reports.

"Bul." is an abbreviation for Monthly Bulletin of the State Industrial Commission.

repair," inserted by L. 1916, ch. 622.

66

1 Word 66 Moving picture machines are not appliances" within the meaning of this group: Balcom v. Ellintuch & Yarfitz, 12 S. D. R. 553; 179 App. Div. 548. Theatrical electricians and moving picture operators are covered by gr. 42.

Group 13. Paving; 1road building, curb and sidewalk construction or repair; sewer and subway construction 2or repair, work under compressed air, excavation, tunneling and shaft sinking, well digging, laying and repair of underground pipes, cables and wires; 3grave digging; undertaking; landscape gardening; planting, moving, trimming and care of trees and tree surgery, not included in other groups; 4street cleaning, ashes, garbage or snow removal; 5garbage sorters; operation of water works. [Group 13 am'd by L. 1916, ch. 622; and L. 1917, ch. 705.]

1 Words

"road building, curb and sidewalk construction or repair," inserted by L. 1916, ch. 622.

2 Words 66

* Words "

or repair" inserted by L. 1916, ch. 622.
grave digging

and tree surgery inserted by L. 1917, ch. 705. 4 Words "street cleaning, ashes, garbage or snow removal ” inserted by L. 1910, ch. 622.

• Words "operation of water works" added by L. 1916, ch. 622. Compare 49-a, subd. 16, compressed air illness.

This group does not cover trimming of fruit trees: O'Dell v. Bowman, 19 S. D. R. 523, 4 Bul. 166; 189 App. Div. 386.

Where the principal business of the employer is garbage removal, accidental injury to an employee whose sole work is sorting on the dump is compensatable: Sacalli v. Marrone, 2 Bul. 91; 12 S. D. R. 543.

The Appellate Division has reversed an award to an officer injured while enroute to get some lead for use on village waterpipes: Spinks v. Village of Marcellus, 180 App. Div. 732.

Group 14. Lumbering, 1except operations solely for the production of fire wood in which not more than four persons are engaged by a single employer; logging, river-driving, drafting, booming, saw mills, 2bark mills; shingle mills, lath mills, 3lumber yards; manufacture of veneer and of excelsior; manufacture of barrels, kegs, vats, tubs, staves, spokes, or headings. [Group 14 am'd by L. 1916, ch 622; and L. 1918, ch. 635.]

1 Words "except... employer," inserted by L. 1918, ch. 635.

2 Words "bark mills," inserted by L. 1916, ch. 622.

3 Words "lumber yards," inserted by L. 1916, ch. 622.

Words "barrels, kegs, vats, tubs," inserted by L. 1916, ch. 622.

Lumberman cases subject of court opinions are: Claremont v. DeCoss, 7 S. D. R. 463; 175 App. Div. 952; 220 N. Y. Rep. 671; Peake v. Lakin, 9 S. D. R. 220; 176 App. Div. 917; 221 N. Y. Rep. 496; Sullivan v. Preston, 10 S. D. R. 566; 177 App. Div. 110; Uhl v. Hartwood Club, 9 S. D. R. 360, 2 Bul. 27; 177 App. Div. 41; 221 N. Y. Rep. 588; and Tsangournos v. Smith, 14 S. D. R. 687, 3 Bul. 80; 183 App. Div. 751.

Award has been reversed in a case of logging on a farm: Brockett v. Metz, 184 App. Div. 342.

Group 15. Pulp and paper mills.

Group 16. Manufacture of furniture, interior woodwork, organs, pianos, piano actions, canoes, small boats, coffins, wicker and rattan ware; upholstering; manufacture of mattresses or bed springs.

Taking up an old carpet and putting down a new one is not upholstering: Strader г. Stern Bros., 15 S. D. R. 589, 16 S. D. R. 507, 3 Bul. 117, 197; 184 App. Div. 700.