sation Law for relief, would be to nullify the provisions of the Labor Law and to disregard the public policy of the State. In enacting the Workmen's Compensation Law the Legislature did not prescribe a code of procedure for persons engaged in unlawful or criminal occupations. The Court of Appeals, in deciding the constitutionality of the Workmen's Compensation Law in so far as it deprives the employee of his commonlaw right of action, said the subject should be viewed in the light of modern industrial conditions, spoke of wasteful and protracted litigation, and sustained the act from considerations of the general welfare. (Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514, 526.) And the decision of the Supreme Court of the United States goes upon the same ground. (New York Central R. R. Co. v. White, 243 U. S. 188.) But it must be apparent that the protection of young children from dangerous employments to which they may be drawn by necessity, or by greed of parents or employers, or through childish inexperience or ignorance, is as important to the general public welfare as caring for those of mature years who may have been disabled in their employment. To concede that defendant violated the law, and at the same time sustain its contention that the Legislature which enacted the statute intended to provide a way out for him, does violence to every principle of right and reason. We do not read the decisions in the Kenny and Ide cases, cited by the learned judge at Special Term, as holding to the contrary. In the case at bar it is the infant who is before the court asserting her right of action, charging that in employing her to work on this dangerous power press the defendant did an unlawful thing, and further that in employing her in a factory without the necessary employment certificate showing consent of her parent or guardian with the other safeguards as to her health, education, etc. (Labor Law, §§ 71-73, as amd. by Laws of 1913, chap. 144, and Laws of 1916, chap. 465), the defendant disregarded the policy of the State and the mandate of the Legislature. In the Kenny Case (supra) deceased was a man of full age, who had been a conductor for the defendant railroad company. After accident resulting in his death, the defendant sought to escape its duty under the Workmen's Compensation Law upon the ground that it was not an "employer," since deceased obtained his employment through false statements punishable under Penal Law, section 939. It was held that such statements, though a misdemeanor, did not make the contract void, but at most voidable at the election of the employer, which it at no time saw fit to exercise. This followed Hart v. N. Y. C. & H. R. R. R. Co. (205 N. Y. 317), where the false representations as to the employee's age were not punishable under the Penal Law. In both these cases the employer had actually received the employee's services while he lived. He first contested such employment with the personal representatives of the deceased after death. In the case at bar the infant herself sues. It is the infant who is here seeking to avoid the contract and pressing its illegality upon the court. The so-called contract in the case at bar was more than voidable. It was contrary to the prohibition of the statute and to the public policy of the State. There was nothing illegal in the employment of Kenny or Hart if the railroad company saw fit to employ them. Kenny, the conductor, was an adult, and Hart, the fireman, while under twenty-one years of age, was apparently old enough to hire himself out on a steam locomotive. In the case at bar this girl under sixteen years of age was incapable of hiring herself out to work in defend

ant's factory in any capacity without employment or working papers which would have required the consent of her parents or guardians and which would have contained the statutory certification or proof that she was physically fit and had received the minimum schooling required by law. In addition, the people of the State in their wisdom had absolutely prohibited her from making such a contract, whether her own or her parents' necessities made it desirable or not. The statute declared that she should not be permitted to work upon this power press under any circumstances. These were matters which did not rest with the girl or her parents or the defendant. The case of Ide v. Faul & Timmins (179 App. Div. 567) involved the insurance carrier's objections, where the minor plaintiff had recovered compensation before the State Industrial Commission. Even regarding the contract as voidable, the infant had affirmed it and had received an award. The question of the effect of violations of the Labor Law in employing children under legal age, upon the common-law right of action of such infants, apparently was not considered in either of the cases cited.

The case of Hetzel v. Wasson Piston Ring Co. (89 N. J. L. 201, 203; L. R. A. 1917 D, 75) has a direct bearing upon the matters here involved. In that case an infant thirteen years of age was employed in the factory of the defendant company, in which the manufacture of piston rings and other metallic articles was carried on. Her action was based upon the commonlaw liability of an employer to compensate an employee for injuries received in his employment by reason of the master's negligence. In the court of first instance the complaint was stricken out upon the ground that the New Jersey Workmen's Compensation Act (Laws of 1911, chap. 95, as amd.) was an exclusive remedy in substitution for the common-law liability of the master, from which order the plaintiff had appealed. After citing the provisions of the Workmen's Compensation Act, which declared that every contract of hiring made after that act took effect should be presumed to have been made with reference to its provisions, the New Jersey Court of Errors and Appeals said, through GUMMERE, Ch. J.: "It can hardly be doubted that the Legislature, in providing for the engrafting of these statutory provisions on contracts of hiring, had in mind contracts which were valid in law or, at least, contracts the making of which was not prohibited by express legislative enactment; for it would be entirely unreasonable to attribute to the Legislature the intention of adding terms to a contract of hiring which it had already prohibited the parties thereto from making. Was, then the contract in the present case a valid one? A mere reference to chapter 64 of the Laws of 1904 (Pamph. Laws, p. 152) furnishes a complete answer to this query. This act regulates the age, employment, safety, and work hours of persons employed in factories, workshops, mills, and all places where the manufacture of goods of any kind is carried on, and its first section is that 'No child under the age of fourteen years shall be employed, allowed or permitted to work in any factory, workshop, mill or place where the manufacture of goods of any kind is carried on; any corporation, firm, individual, parent, or guardian of any child who shall violate any of the provisions of this section shall be liable to a penalty of $50 for each offense.' The basis of the judgment below is that there was a contract of hiring by which the plaintiff became the employee of the defendant. That there was such a contract, either express or implied, clearly appears from the facts set

out in the plaintiff's complaint. That the contract was in violation of this statute, and that the making thereof was absolutely prohibited thereby, cannot be questioned; for it will hardly do to say, as is suggested by counsel, that the employer and the parent of the minor can by joint agreement deprive the child of the protection of this statute by a payment of $50 as a penalty for a violation of its provisions. The purpose of the statute cannot be thwarted in any such way. Its primary object is the protection of children who are too young to appreciate the dangers arising out of work in places such as those described in the act. And in order to make that protection complete the Legislature left no loophole for the escape from its provisions of either the employer or the parent. It says to the employer, 'You shall not employ any child under the age of fourteen years in your factory; you shall not allow or permit him to work there.' It says to the parent of such a child, 'You shall not allow or permit your boy or girl to work in such a place until he or she has reached the age of fourteen years.' Having declared this absolute prohibition, how can it logically be said that the Legislature, by a subsequent enactment, recognized the right of the factory owner and the parent to disregard the mandate of this statute, and make a contract for the employment of the boy which might or might not have read into it the provisions of the Workmen's Compensation Act, as the master and the parent between them should elect? It is said that there is nothing in the complaint which shows that the contract of hiring was made by the parent on behalf of the plaintiff, and not by the plaintiff himself. It is not necessary that this should appear. Ordinarily the parent is entitled to the services of the child, and the wages earned by the child, until he reaches his majority, and so contracts for the employment of the child are presumed to be made by the parent. But in this particular case, it is immaterial whether the contract was that of the parent for the child, or of the child by his own act; for the prohibition of the act of 1904 is not only against the making of contracts for the employment of minors under the age of fourteen in factories where the manufacture of goods is carried on, but against allowing or permitting him to work in any such factory; and so a contract of hiring which by its terms proposes to violate that act, is equally invalid whether made by the parent or by the child. We conclude, therefore, that the common law right of action of the plaintiff arising out of the facts set out in his complaint has not at all been affected by the provisions of the Workmen's Compensation Act, and that, therefore, the judgment under review must be reversed."

The New Jersey act contains a provision not found in the New York statute, by which workmen may elect whether they will accept the benefits of the law. In the case at bar there is no evidence that the parent consented to or was consulted about the employment, because it is alleged that no working papers were required by or filed with the employer. In Robilotto v. Bartholdi Realty Co. (104 Misc. Rep. 419), Mr. Justice McAvoy at Special Term, expressing the opinion that the common-law action survived in a case of unlawful employment of a child, felt constrained to decide contrary to his individual judgment by the decision in Ide v. Faul & Timmins. If the constitutionality of the Workmen's Compensation Law in depriving a laborer of his right to trial by jury of his claim for damages against an employer is sustained because of modern industrial conditions, and upon the the theory that employer and employee are presumed to have had the law in mind,

"since they voluntarily engage in it [i. e., the employment] as co-adventurers, with personal injury to the employee as a probable and foreseen result" (New York Central R. R. Co. v. White, supra, 205) such reasoning does not apply to the unlawful and prohibited employment upon a dangerous machine of a child under sixteen years of age.

It follows that the order granting defendant's motion for judgment upon the pleadings was erroneous, and that the judgment entered in pursuance of such order should be reversed.

The order granting defendant's motion for judgment upon the pleadings should be reversed, with costs and disbursements, and motion denied, with ten dollars costs. The judgment entered upon such order dismissing the complaint is reversed, with cost, and the case is remitted to the Supreme Court for trial.

MILLS, PUTNAM and JAYCOx, JJ., concurred; THOMAS, J., concurred for reversal in separate memorandum.

THOMAS, J.: I concur for reversal upon the ground that upon the facts presented the violation of the statute was the proximate cause of the injury (Amberg v. Kinley, 214 N. Y. 531), and upon the trial the question of proximate cause and damages was for the jury. The question of negligently guarding the machine is inconsistent. The defendant could not become a master, and is liable whether the machine was or was not guarded, if it put the girl to work on it in violation of the statute. I concur with Mr. Justice KELLY'S discussion and conclusion as to the Workmen's Compensation Law and its non-applicability.

Order reversed, with costs and disbursements, and motion denied, with ten dollars costs. Judgment reversed, with costs, and case remitted to the Supreme Court for trial.

L. DISEASE OR INFECTION

Nearly all of the opinions in disease cases for the period covered by Bulletin 87 were found to treat of points other than the connection of disease with accident. The same is true of opinions in disease cases for the period covered by this bulletin. The question of evidence, the question of occurrence of accident, and other questions more remote from the subject of cause and result, are the theme of the eight or ten opinions. Accordingly, with four exceptions, these opinions are under other topics than this, either in Bulletin 95 or in this bulletin.

1. ACCIDENTS DUE TO DISEASE

Insurance carriers, relying upon Collins v. Brooklyn Union Gas Co., have used the argument that disease has caused the accident, rather than the accident disease, in numerous cases, especially in cases obscured by lack of witnesses, absence of notice, etc., but without much success. The Commission has been formulating an exception to the rule that disease causing accident is not compensatable. This exception holds that injury due to fall under special hazard of position is compensatable, even though disease, fainting or other illness has caused the fall. Such falls are subject to the hazard of height or of proximity to dangerous machines. The courts have not yet passed upon this point. The cases are presented under the topic "Fall while under exposure to unusual risk," above, pages 133, 134.

An elevator operator was found at some elevator crawling upon his employer's floor.

distance from his The elevator was a cut on his head

at floor level and in perfect condition. He had and could not tell what had happened to him. He died in hospital. The hospital records stated that he had been suddenly seized with a dizzy spell and had remained unconscious for an hour. He had had a similar attack before. An autopsy found that his death had been due to softening of the brain, following thrombosis of a cerebral artery. The Commission denied death benefits to his widow: Oberlander v. Noyes & Co., 21 S. D. R., 453, Nov. 11, 1919.