it was held that a release from liability for negligence given by plaintiff's intestate to defendant, in consideration of the reduced rate at which a railroad ticket was sold to him, prevented a recovery by his representatives. I am of the opinion that the decedent, at the time of his death, did not have a right of action against the defendant. This must be so unless the contract which he made with it is so contrary to the public policy of the state of New York that the court should refuse to enforce it. This court held in Johnston v. Fargo, 184 N. Y. 379, 77 N. E. 388, 7 L. R. A. (N. S.) 537, 6 Ann. Cas. 1, that an agreement relieving the employer of all liability for negligent injuries to his employes was contrary to public policy and void. But it also held in Colaizzi v. Pennsylvania R. R. Co., 208 N. Y. 275, 101 N. E. 859, that an agreement, after an accident, to accept certain benefits in a relief fund in lieu of commonlaw remedies, was valid and binding. [3] Is there any public policy of the state that would prohibit the enforcement of a contract made in New Jersey like the one here in question? I know of none. Indeed, shortly after this accident occurred, our own Workmen's Compensation Law took effect. Compensation laws of a similar character have been enacted in very many of the states. Even before the New York act was passed, the Constitution of the state was amended for the express purpose of permitting the Legislature to enact it. Article 1, § 19. Under such circumstances, I can see no analogy between this case and the case presented in Johnston v. Fargo, supra. This is not an attempt to relieve the employer from liability. It is nothing more than an attempt to establish a scale of compensation which shall give the employe a remedy for all injuries, whether due to negligence or not. There is no doubt that such a contract would bind the employer, and, if so, no reason has been suggested why it ought not to bind the employe. If it did bind him, then at the moment of his death his commonlaw right of action had been barred, and, being barred against him, it was barred also against his representatives. The contract of employment was valid in New Jersey, and, being so, prevents the maintenance of an action for the recovery here sought in New York. Piatt v. Swift, 188 Mo. App. 584, 176 S. W. 434; Pendar v. American Co., 35 R. I. 321, 87 Atl. 1, L. R. A. 1916A, 428. It follows that the judgment appealed from should be affirmed, with costs. Hiscock, C. J., and Hogan, Cardozo, Pound, Andrews, and Elkus, JJ., concur. Judgment affirmed. MORRIS v. MULDOON (Supreme Court of New York, Appellate Division, First Department. Feb. 6, 1920.) 180 New York Supplement 319 2. MASTER AND SERVANT-EXCAVATOR FOR "CONCRETE WORK," INJURED IN COURSE OF EMPLOYMENT WITHIN WORKMEN'S COMPENSATION LAW; "ARISING OUT OF AND IN COURSE OF EMPLOYMENT." An excavation only 4 feet square and 10 feet deep, for the purpose of holding a concrete pillar to strengthen an existing building is incidental to the "concrete work," within the provisions of the Workmen's Compensation Law as to hazardous employment, and injury to a laborer employ ed by the one engaged in the concrete work, while making such excavation arose "out of and in the course of his employment," within the meaning of the act. (For other cases, sec Master and Servant, Dec. Dig. § 373.) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) 3. MASTER AND SERVANT-INJURY RESULTING IN DISABILITY IS WITHIN WORKMEN'S COMPENSATION LAW, THOUGH ASSOCIATED INJURIES ARE NOT SPECIFI CALLY MENTIONED. Wherever injury results in disability, permanent or partial, the injury comes within the Workmen's Compensation Law, even though there be associated injuries, resulting from the accident, which are not specifically mentioned in such act. (For other cases, see Master and Servant, Dec. Dig. § 353.) From an Appeal from Special Term, New York County. Action by Edward Morris against Edward H. Muldoon. order (108 Misc. Rep. 143, 177 N. Y. Supp. 673) denying his motion for judgment on the pleadings, defendant appeals. Order reversed, and motion granted. Argued before Dowling, Laughlin, Smith, Merrell, and Philbin, JJ. Nadal, Jones & Mowton, of New York City (Edwin A. Jones, of New York City, of counsel, and Alfred L. Pitts, of New York City, on the brief), for appellant. George B. Class, of New York City (John L. Class, of New York City, of counsel), for respondent. SMITH, J. The action is brought by an employe against an employer, to recover damages for an injury sustained while he was digging down at the corner of a building for the purpose of getting space to insert a cement pillar or post to more strongly support the building. The defendant is a mason and builder, and was at the time of the accident in question. This building had been insecure by reason of weak foundations. It was shored up, and the plaintiff was set to work digging out a space about 4 feet square and 10 feet deep, so that after digging the same a concrete pillar might be placed in the said trench, which pillar would partly be under the corner of the building and furnish support therefor. It was the intention to furnish other supports to the building. The complaint alleged that the plaintiff, "in the course of plaintiff's employment as aforesaid, was directed to dig" this ditch, and it further alleges that the injuries received "have permanently impaired the health of the plaintiff, so that he will never again regain normal health, or be able to work as before the accident." [1] In a case which would come within the provisions of the Compensation Law (Consol. Laws, c. 67), the authorities require the plaintiff, seeking to recover for his injuries in an action, to negative the fact that the defendant has complied with the Workmen's Compensation Law. Nulle v. Hardman, Peck & Co., 185 App. Div. 351, 173 N. Y. Supp. 236; Basso v. John T. Clark & Son, 108 Misc. Rep. 78, 177 N. Y. Supp. 484. No such allegation is found in this complaint. The main argument of the plaintiff, however, is that, upon the assumption that the defendant has conformed to all the conditions prescribed in the Workmen's Compensation Law, nevertheless, the act does Vol. V-Comp. 38. not apply to the case at bar, and therefore the defendant has not relieved himself from liability; and this, as I take it, is the principal issue in the case. [2] In the first place, the fact is challenged that the injury received "arose out of and in the course of the plaintiff's employment." Among the hazardous occupations specified in the act under section 2, group 42, as amended by Laws 1918, c. 634, are: "Brick laying, tile laying, mason work, stone setting, concrete work, plastering, and manufacture of concrete blocks; construction, repair and demolition of buildings, bridges and other structures." Placing these concrete piers under this building was clearly the work of a mason or one engaged in concrete work, and, as that was his business, a common laborer employed by him might well be sent, first, to dig out the place where the concrete pillar was to stand. It is not reasonable to suppose that the insertion of the word "excavation" among the hazardous occupations meant every minor excavation which was incidental to other work. It should fairly be construed to mean excavation which was a substantial part of the work contracted for, and where such an excavation only 4 feet square and 10 feet deep was made for the purpose of holding a concrete pillar to strengthen an existing building, that excavation should fairly be deemed incidental to the placing of the concrete pillar, and not as a job outside of and independent of such concrete work. Matter of Dose v. Moehle Lithographic Co., 221 N. Y. 402, 117 N. E. 616. The injury of which the plaintiff complains, therefore, arose out of and in the course of his employment. Moreover, the complaint so specifically alleges. [3] The further contention is made, because in this injury is included permanent injury to the coccyx bone of the spine, and hernia, which are not mentioned in the schedule of injuries under section 15 of the act, that at least for such injury a common-law action must lie. If, however, in every case where there could be found some injury not mentioned under the schedule of section 15 of the act, there is a separate right of action at common law for the damages sustained thereby, the Compensation Law would become a farce, and a recovery could be had under the Compensation Law, with the right of action still existing for the injuries not mentioned in the schedule. Moreover, this action is not brought simply to recover compensation for injuries not mentioned in the schedule of injuries under section 15 of the act, but the allegation of the complaint is that the injuries received have permanently impaired the health of the plaintiff, so that he will never again regain normal health, or be able to work as before the accident. It is not intended to include in the schedule named in the statute all the injuries which might result in permanent or partial impairment of earning capacity to which the act should apply. As to the enumeration of specific disability, provision is made for other cases which should impair the wage-earning capacity of the party injured, and there is further specification which covers the case of total permanent disability, temporary total disability, permanent partial disability, and temporary partial disability. Wherever the injury results in disability, permanent or partial, the injury comes within the purview of the act, even though there be associated injuries, resulting from the accident, which are not specifically mentioned. It has been noted in the decisions that this act was to an extent a compromise between the employer and employe, whereby both have surrendered certain rights. In an action, a plaintiff may recover for pain and suffering, provided a cause of action be proven. Under the Compensation Law, however, the right to recover for pain and suffering has been surrendered by the employe. Matter of Sweeting v. American Knife Co, 226 N. Y. 201, 123 N. E. 82. The employer had assumed liability for all accidents, whether or not occasioned by his own fault, and the statute made under authority of the constitutional amendment has placed the right of recovery upon the extent of disability suffered by the employe from any accident happening in the course of the employment. The case of Shinnick v. Clover Farms Co., 169 App. Div. 236, 154 N. Y. Supp. 423, does not uphold the right to a common-law action in the case at bar. In that case there was no impairment of earning power, temporary or permanent, so that the case was held not to come within the provisions of the Workmen's Compensation Act. Inasmuch, therefore, as this plaintiff suffered wage-earning disability while in the course of his employment, and the plaintiff has not alleged any special fact which would authorize the bringing of an action therefor, the plaintiff is remitted to the exclusive remedy provided by the act, and cannot maintain his action. The order, therefore, should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur. STEMPFLER v. J. RHEINFRANK & CO. et al. (Supreme Court of New York, Appellate Division, Third Department. Dec. 29, 1919.) 179 New York Supplement 659 MASTER AND SERVANT-WORKMEN'S COMPENSATION; PAYMENT TO STATE TREASURER IN ABSENCE OF SURVIVING DEPENDENTS. Under Workmen's Compensation Law, § 15, subd. 7, the insurance carrier must pay the state treasurer $100 for a case of injury causing death of an employee without surviving dependents entitled to compensation, though the employee himself before death received compensation for a brief period; he not being "a person entitled to compensation" in a "case of injury causing death." (For other cases. see Master and Servant, Dec. Dig. § 388.) Appeal from State Industrial Commission. In the matter of the claim for compensation under the Workmen's Compensation Law for the death of Martin Stempfler, opposed by J. Rheinfrank & Co., the employer, and the Travelers' Insurance Company, the insurance carrier. Compensation to the State Treasurer was awarded by the State Industrial Commission, and the employer and insurance carrier appeal. Award affirmed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Amos H. Stephens, of New York City (E. C. Sherwood, of New York City, of counsel), for appellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel). for State Industrial Commission. HENRY T. KELLOGG, J. It is provided in subdivision 7 of section 15 of the Workmen's Compensation Law (Consol. Laws, c. 67): "The insurance carrier shall pay to the state treasurer for every case of injury causing death in which there are no persons entitled to compensation the sum of $100." The deceased, for whose death an award under the provision was made, left him surviving no widow, child, or dependent relative, and therefore no person entitled to compensation. The fact that the deceased himself received compensation for a brief period for disabilities resulting from his injuries has no significance. An award is payable to the state treasurer in a "case of injury causing death," and although the person dying temporarily receives compensation for disabilities during life, he is nevertheless not, within the meaning of the provision, a "person entitled to compensation" in a "case of injury causing death," for the very obvious reason that when the payment is or can be made there has arisen no such The award should be affirmed. All concur. case. STATE EX REL. STEARNS v. OLSON, STATE TREASURER. (Supreme Court of North Dakota. Oct. 25, 1919. Concurring Specially Opinion Oct. 28, 1919.) 175 Northwestern Reporter 714 (Syllabus by the Court.) COMPENSATION 1. MASTER AND SERVANT-WORKMEN'S Under the Workmen's Compensation Act, the state treasurer is made custodian of the fund, which is accumulated in the manner prescribed by law for the payment of claims allowed by the Workmen's Compensation Bureau. Held, that such fund is a special, and not a public, fund. (For other cases, see Master and Servant, Dec. Dig. § 383.) (For other definitions, see Words and Phrases, First and Second Series, Public Funds.) 2. MASTER AND SERVANT—WORKMEN'S COMPENSATION FUND DISBURSED BY WARRANTS OF COMPENSATION When a claim has been presented to the Workmen's Compensation Bureau by one who claims benefits under the Workmen's Compensation Act, and such a claim has been determined by the bureau, and a definite amount awarded the claimant, the bureau, under the provisions of the act, may draw its voucher, or, in this case, its voucher warrant, against the treasurer as custodian of such fund, directing the state treasurer as custodian of the fund to pay the claimant the amount stated in the voucher warrant. (For other cases, see Master and Servant, Dec. Dig. § 383.) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION FUND NOT DISBURSED BY WARRANT OF STATE AUDI- Under said act the state auditor has no authority to issue a warrant for the payment of any award made by the Workmen's Compensation Bureau. (For other cases, see Master and Servant, Dec. Dig. § 383.) |