premiums exceed the amount of the disbursements from the fund on account of injuries or death of his employees during such period, on the instalment or instalments of premiums next due from him such proportion of such balance as the amount of his prior paid premiums sustains to the whole amount of such premiums paid by the group to which he belongs since the last readjustment of rates. 2 In the event that any member of the group who has heretofore or shall hereafter withdraw would have become entitled to such dividend if he had remained in the fund the commission is empowered to pay the amount of the dividend to such employer. [Subd. 3 am'd by L. 1916, ch. 622.] 1 Word "divisible" substituted for word "devisable," by L. 1914, ch. 41. 2 Following sentence added by L. 1916, ch. 622. Workmen's Compensation dividends of private insurance carriers must be approved by the state superintendent of insurance: Insurance Law, § 190.

4. If the amount of premiums collected from any employer at the beginning of any period of 1twelve months is ascertained and calculated by using the estimated expenditure of wages for the period of time covered by such premium payment as a basis, an adjustment of the amount of such premium shall be made at the end of such 1twelve months, and the actual amount of such premium shall be determined in accordance with the amount of the actual expenditure of wages for such period; and, if such wage expenditure for such period is less than the amount on which such estimated premium was collected, such employer shall be entitled to receive a refund from the state insurance fund of the difference between the amount so paid by him and the amount so found to be actually due, or to have the amount of such differ ence credited on succeeding premium payments, at his option; and if such actual premium, when so ascertained, exceeds in amount a premium so paid by such employer at the beginning of such 1twelve months, such employer shall immediately upon being advised of the true amount of such premium due forthwith pay to the treasurer of the state an amount equal to the difference between the amount actually found to be due and the amount paid by him at the beginning of such 1twelve months period. [Subd. 4 am'd by L. 1917, ch. 705.]

1 Word "twelve " substituted for word "six" by L. 1917, ch. 705.

§ 98. Time of payment of premiums.- Except as otherwise provided in this chapter, all premiums shall be paid by every employer into the state insurance fund on or before July first, nineteen hundred and fourteen, and semi-annually thereafter, or at such other time or times as may be prescribed by the commission. The commission shall mail a receipt for the same to the employer and place the same to the credit of the state insurance fund in the custody of the state treasurer.

§ 99. Action for collection in case of default.- If an employer shall default in any payment required to be made by him to the state insurance fund, the amount due from him shall be collected by civil action against him in the name of the people of the state of New York, and it shall be the duty of the commission on the first Monday of each month after July first, nineteen hundred and fourteen, to certify to the attorney-general of the state the names and residences, or places of business, of all employers known to the commission to be in default for such payment or payments for a longer period

than five days and the amount due from such employer, and it shall then be the duty of the attorney-general forthwith to bring or cause to be brought against each such employer a civil action in the proper court for the collection of such amount so due, and the same when collected, shall be paid into the state insurance fund, and such employer's compliance with the provisions of this chapter requiring payments to be made to the state insurance fund shall date from the time of the payment of said money so collected as aforesaid to the state treasurer for credit to the state insurance fund.

Justices of the peace have cognizance of civil actions for premiums due the state insurance fund not exceeding two hundred dollars: Code of Civil Procedure, § 2863, subd. 1, as am'd by L. 1917, ch. 772.

§ 100. Withdrawal from fund.— Any employer may, upon complying with subdivision two or three of section fifty of this chapter, withdraw from the fund by turning in his insurance contract for cancellation, provided he is not in arrears for premiums due the fund and has given to the commission written notice of his intention to withdraw within thirty days before the expiration of the period for which he has elected to insure in the fund; provided that in case any employer so withdraws, his liability to assessments shall, notwithstanding such withdrawal, continue for one year after the date of such withdrawal as against all liabilities for such compensation accruing prior to such withdrawal. [As am'd by L. 1916, ch. 622.]

This section re-enacted without change by L. 1916, ch. 622.

This reference to assessment is the only use of the word in the Workmen's Compensation Law. The Attorney-General, in an opinion of July 16, 1915, has held that assessments cannot be levied.

The conditions and relations of cancellation of state fund policies under this subdivision and withdrawal from the state fund under § 100 are interpreted in Schwartz et al. v. Window Cleaning Cos., 5 Bul. 107; see Special Bulletin, No. 98, p. 66.

§ 101. Audit of payrolls.- Every employer who is insured in the state insurance fund shall keep a true and accurate record of the number of his employees and the wages paid by him, and shall furnish to the commission, upon demand, a sworn statement of the same. Such record shall be open to inspection at any time and as often as the commission shall require to verify the number of employees and the amount of the payroll.

For a case involving payroll records compare Reddy v. National Excavating Co., 10 S. D. R. 621; 178 App. Div. 943.

§ 102. Falsification of payroll.- An employer who shall wilfully misrepresent the amount of the payroll upon which the premiums chargeable by the state insurance fund is to be based shall be liable to the state in ten times the amount of the difference between the premiums paid and the amount the employer should have paid had his payroll been correctly computed and the liability to the state under this section shall be enforced in a civil action in the name of the state insurance fund, and any amount so collected shall become a part of such fund.

§ 103. Wilful misrepresentation.- Any person who wilfully misrepresents any fact in order to obtain insurance in the state insurance fund at less than the proper rate for such insurance, or in order to obtain payment out of such fund, shall be guilty of a misdemeanor.

§ 104. Inspections. The commission shall have the right to inspect the plants and establishments of employers insured in the state insurance fund; and the inspectors designated by the commission shall have free access to such premises during regular working hours.

§ 105. Disclosures prohibited. Information acquired by the commission or its officers or employees from employers or employees pursuant to this chapter shall not be opened to public inspection, and any officer or employee of the commission who, without authority of the commission or pursuant to its rules or as otherwise required by law shall disclose the same shall be guilty of a misdemeanor.

The Commission's sessions are open to the public: § 64.

§ 106. Reports of state insurance fund; examination by insurance department. The commission shall make reports to the superintendent of insurance concerning the state insurance fund at the same times and in the same manner as is required from mutual employers' liability and workmen's compensation corporations by section one hundred and ninety-two of the insurance law, and the superintendent of insurance may examine into the condition of such state insurance fund at any time, either personally or by any duly authorized examiner appointed by him, for the purpose of determining the condition of the investments and the adequacy of the reserves of such fund. [Added by L. 1916, ch. 622.]

ARTICLE 6

MISCELLANEOUS PROVISIONS

Section 110. Penalties applicable to expenses of commission. 111. Record and report of injuries by employers.

112. Information to be furnished by employer.

113. Inspection of records of employers.

114. Interstate commerce.

115. Penalties for false representations.

116. Limitation of time.

117. Duties of commissioner of labor.

118. Unconstitutional provisions.

119. Actions or causes of action pending.

§ 110. Penalties applicable to expenses of commission.- All penalties imposed by this chapter shall be applicable to the expenses of the commission. When collected by the commission such penalties shall be paid into the state treasury and be thereafter appropriated by the legislature for the purposes prescribed by this section.

Penalties are prescribed by §§ 20, 20-a, 25, 26, 31, 50, 52, 69, 102, 103, 105, 111, 115. Actions for their recovery may be brought under § 26. Sections 20, 20-a, and 25, as amended by L. 1919, ch. 629, create exceptions to this section.

§ 111. Record and report of injuries by employers.- Every employer shall keep a record of all injuries, fatal or otherwise, received by his employees in the course of their employment. Within ten days after the occurrence of an accident resulting in personal injury a report thereof shall be made in writing by the employer to the commission upon blanks to be procured from the commission for that purpose. Such report shall state the name and nature of the business of the employer, the location of his establishment or place of work, the name, address and occupation of the injured employee, the time, nature and cause of the injury and such other information as may be required by the commission. An employer who refuses or neglects to make a report as required by this section shall be guilty of a misdemeanor, punishable by a fine of not more than five hundred dollars.

Compare Labor Law, §§ 20-a, 87 and 126; the Commission requires but one report of an accident, that upon the workmen's compensation form: 1 Bul. No. 1, p. 7.

In regard to evidence of accidental injury, §§ 18, 21 and 111 are to be read together. The employer's failure to give the details required by § 111 has told against him in McQueeney v. Sutphen & Myer, 167 App. Div. 528; Kohler v. Frohmann, 167 App. Div. 533; and Powley v. Vivian & Co., 169 App. Div. 170.

§ 112. Information to be furnished by employer.- Every employer shall furnish the commission, upon request, any information required by it to carry out the provisions of this chapter. The commission, a commissioner, deputy commissioner, or any person deputized by the commission for that purpose, may examine under oath any employer, officer, agent or employee. An employer or an employee receiving from the commission a blank with directions to file the same shall cause the same to be properly filled out so as to answer fully and correctly all questions therein, or if unable to do so, shall give good and sufficient reasons for such failure. Answers to such questions shall be verified under oath and returned to the commission within the period fixed by the commission therefor.

§ 113. Inspection of records of employers.- All books, records and payrolls of the employers showing or reflecting in any way upon the amount of wage expenditures of such employers shall always be open for inspection by the commission or any of its authorized auditors, accountants or inspectors for the purpose of ascertaining the correctness of the wage expenditure and number of men employed and such other information as may be necessary for the uses and purposes of the commission in the administration of this chapter.

§ 114. Interstate commerce.- The provisions of this chapter shall apply to employers and employees engaged in intrastate, and also in interstate or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the congress of the United States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce, except that such employer and his employees working only in this state may, subject to the approval and in the manner provided by the commission and so far as not forbidden by any act of congress, accept and become bound by the provisions of this chapter in like manner and with the same effect in all respects as provided herein for other employers and their employees.

Federal law exclusive. The Federal Employers' Liability Act, c. 149, 35 Stat. 65; c. 143, 36 Stat. 291, entitled "An act relating to the liability of common carriers by railroad to their employees in certain cases," excludes operation of the Workmen's Compensation Law of New York as concerns all railroad employees injured while engaged in interstate commerce, whether the accident be due to negligence on the part of the railroad or not: New York Central R. R. Co. v. Winfield, 244 U. S. 147. This decision of the Supreme Court of the United States reversed a decision of the Court of Appeals of New York which had held that the Federal Employers' Liability Act was inapplicable to accidents not due to the railroads' negligence. With opinions citing it as authority, the New York Court of Appeals reversed and remanded cases in Saxon v. Erie R. R. Co., 221 N. Y. 179; and Plass v. Central N. E. Ry. Co., 221 N. Y. 472.

Cases in interstate commerce.- Definition of interstate commerce has become pertinent in view of the U. S. Supreme Court decision. Cases held to be in interstate commerce are: Shoveling snow from between railroad platform and tracks: New York Central R. R. Co. v. Porter, 172 App. Div. 918; 249 U. S. 168; waiting to make repairs upon a locomotive incoming from its interstate journey: Saxon v. Erie R. R. Co., 172 App. Div. 913; 221 N. Y. 179; Claim No. 25963, Feb. 26, 1918; accompanying express shipments across state lines: Gobrecht v. Wells, Fargo & Co., Claim No. 28898; 179 App. Div. 952; working in boiler room of power station Guida v. Pa. R. R. Co., Death Case, No. 65621; 183 App. Div. 822; 224 N. Y. Rep. 712; switching interstate car to siding: Gattovi v. N. Y. Central R. R. Co., 17 S. D. R. 632; App. Div. - May 17, 1920; cleaning car halted upon its interstate journey: Kinsella v. N. Y. Central R. R. Co., Case No. 13303; 186 App. Div. 856; and guarding an interstate shipment of potatoes: O'Brien v. Pennsylvania R. R. Co., Death Case, No. 25284; 187 App. Div. 839; transferring an intrastate package to or from an interstate train: Evans v. U. S. R. R. Administration, Claim No. 13558; 191 App. Div. 704, May 5, 1920; braking upon intrastate train containing interstate cars: Nelson v. U. S. R. R. Administration, Claim No. 14882-S; App. Div. -, July 8, 1920; serving as crossing gateman upon an interstate railroad line: Hanley v. N. Y. Central R. R. Co., Death Case, No. 4854; App. Div. -, May 5, 1920.

66

Section 2, gr. 8, above, excludes from the compensation law's coverage vessels of other states or countries used in interstate or foreign commerce"; because of this exclusion award has been denied in Charlton v. Hilton-Dodge Trans. Co., 178