42, as added by Laws 1916, c. 622, and group 44, as added by Laws 1917, c. 705, including "persons maintaining buildings," and "keepers," "guards,' or "orderlies" in prisons. (For other cases, see Master and Servant, Dec. Dig. § 364.) (For other definitions, see Words and Phrases, Second Series, Guard; First and Second Series, Keeper; First Series, Orderly.) Appeal from Supreme Court, Appellate Division, Third Department. Claim of Cornelius Ryan for compensation under the Workmen's Compensation Act against the City of New York, employer and selfinsurer. From an order of the Appellate Division (189 App. Div. 49, 178 N. Y. Supp. 402) affirming an award of the State Industrial Commission the employer appeals. Reversed, and claim dismissed. William P. Burr, Corporation Counsel, of New York City (John F. O'Brien, of counsel), for appellant. Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent. CARDOZO, J. The claimant is a member of the police force of the city of New York with the rank of patrolman. He was detailed to service at the Thirty-Seventh precinct police station. His chief duties there were to guard the prisoners and to keep part of the building in order. On June 11, 1918, while standing on a box in order to remove an electric light bulb, he was thrown to the floor by the breaking of the box, and dişability for a little more than a month resulted from his injuries. The question is whether the case is within the Workmen's Compensation Law (Consol. Laws, c. 67). [1, 2] Employes of the state or of a municipal corporation have the protection of the statute if they are engaged in one or more of the enumerated hazardous employments. Workmen's Comp. Law, § 3, subds. 3 and 4; section 2, group 43, as added by Laws 1916, c. 622. To sustain the award, we must be able to say that the claimant was an employe so engaged when his injuries were suffered. The argument is that he comes within two groups; group 44 of section 2, as added by Laws 1917, c. 705, which includes "employment as a keeper, guard, nurse or orderly in a prison, reformatory, insane asylum or hospital maintained or operated by the state or municipal corporation or other subdivision thereof," and group 42, as amended by Laws 1916, c. 622, which includes the "maintenance and care of buildings." We think the claimant has not brought himself within either of these classes. His occupation was not that of a turnkey or keeper. It was not that of the maintenance or care of buildings. His occupation was that of a patrolman, and his position a public office, with functions which, however diverse, have an identity all their own. Blynn v. City of Pontiac, 185 Mich. 35, 151 N. W. 681; Greater N. Y. Charter (Laws 1901, c. 466), §§ 276, 283. He did not become a turnkey or a janitor because the work to which he had been detailed by his superiors was similar to that which turnkeys and janitors often do. One might as well say that an officer assigned to duty in the mounted squad would be classified as a hostler. We have recently had occasion to emphasize the distinction between offices or positions and details or assignments. People ex rel. O'Connor v. Grivin, 227 N. Y. 392, 125 N. E. 587. Policemen do not change their occupations as they render now this service and now that one is obedience to the call of duty. The occupation remains single through all its multifarious incidents. Any other conclusion involves the scheme of the statute in hopeless vagaries. It means that in awarding compensation to members of the police force the typical hazards have been ignored and the trivial ones rewarded. The officer who battles with a burglar has been excluded, and the one who spends his days in the shelter of the station has been singled out for protection. We will not readily impute to the Legislature a discrimination so unreasonable. The occupation of a policeman, if there had been any purpose to bring it within the statute, would have been brought there in its entirety. Discrimination, were there any, would be in favor of the hazards that are greatest, and not of those that are least. In case The truth is that the claimant and his brother officers do not need the protection of the Workmen's Compensation Law, and the Legislature did not mean that they should have it. They do not need it, because compensation is assured to them by an independent statute, with its own special and comprehensive scheme. In case of temporary disability, incurred in the performance of duty, there may be leave of absence on full pay. Greater N. Y. Charter, § 292; Police Department Rule 597. of permanent disability or death, there are pensions for the officer and for his widow or children. Greater N. Y. Charter, §§ 354, 355. We cannot think that this carefully developed scheme for the relief of policemen and their dependents has been mutilated, if not altogether superseded, whenever a policeman does something which is also done by a workman in one of the hazardous employments. The Legislature must speak more plainly before we will adopt a construction that leads to such The special statute stands, untouched by a later statute of general application, unless the purpose to destroy the special scheme is unmistakably declared. Matter of Commissioners of Central Park, 50 N. Y. 493, 497. results. The order of the Appellate Division and the award of the Industrial Commission should be reversed, and the claim dismissed, without costs to either party. Hiscock, C. J., and Chase, Collin, Pound, Crane and Andrews, JJ, concur. Order reversed, etc. SKARPELETZOS v. COUNES & RAPTIS CORPORATION (Court of Appeals of New York. Jan. 27, 1920.) 126 Northeastern Reporter 268. ET AL MASTER AND SERVANT AWARD OF DEATH BENEFIT TO BOTH ALIEN PARENTS UNAUTHORIZED BY WORKMEN'S COMPENSATION LAW. Under Workmen's Compensation Law, § 17, as amended by Laws 1916, c. 622, limiting compensation to the father or mother, where deIceased alien employee left no wife or child, an award to each of his parents, nonresident aliens, of 25 per cent. of his wages, is erroneous, and should be modified by striking out award in favor of mother. (For other cases, see Master and Servant, Dec. Dig. § 388.) Cardozo, J., dissenting. Appeal from Supreme Court, Appellee Division, Third Department. Proceeding for compensation by Anthony Skarpeletzos, by D. N. em Botassi, Greek Consul, opposed by the Counes & Raptis Corporation, ployer, and the General Accident, Fire & Life Assurance Corporation, Limited, insurance carrier. From an order of the Appellee Division (175 N. Y. Supp. 922) affirming award, the employer and insurance appeal. Order and award modified, and as modified affirmed. See, also. 185 App. Div. 900, 171 N. Y. Supp. 1099. carrier Theodore H. Lord, of New York City, for appellants. POUND, J. This is a workmen's compensation case. Deceased was an alien who was killed in the course of his employment. He left no wife or child. His father and mother were nonresident aliens, and the Industrial Commission made an award to each parent of 25 per cent. of his wage, which has been upheld by the Appellate Division. The question is as to the proper award of the death benefit under the provisions of section 17, Workmen's Compensation Law (Consol. Laws, c. 67; Laws 1914, c. 41, as amended by Laws 1916, c. 622), which reads as follows: "Sec. 17.-Aliens.-Compensation under this chapter to aliens not residents (or about to become nonresidents) of the United States or Canada, shall be the same in amount as provided for residents, except that dependents in any foreign country shall be limited to surviving wife and child or children, or, if there be no surviving wife or child or children, to surviving father or mother, or grandfather or grandmother, whom the employe has supported, either wholly or in part, for the period of one year prior to the date of the accident, and except that the commission may, at its option, or upon the application of the insurance carrier, shall, commute all future installments of compensation to be paid to such aliens, by paying or causing to be paid to them one-half of the commuted amount of such future installments of compensation as determined by the commission." Appellants contend that the statute provides for an award to one parent only and not to both. The classes of resident dependents for whose benefit an award may be made extend (section 16) not only to wife or husband, children, parents, or grandparents, but also to brothers and sisters under the age of 18. In case of parents death benefits shall be paid "for the support of each parent, or grandparent, of the deceased, if dependent upon him at the time of the accident, twenty-five per centum of such wages during such dependency." The aggregate amount payable shall not exceed 66 2/3 per cent. of such wages. Each parent or each grandparent is thus specifically provided for, and the total award may equal 66 2/3 per cent. of the decedent's wages. But in the case of dependents who are nonresident aliens the statute is less liberal. It contains no provision for an award to each dependent parent or grandparent, but provides only for father or mother, or grandfather or grandmother. Read as it has been below, with a view to harmonizing the two sections, as if it said "to each surviving parent or grandparent," it would call for an award to both dependent parents or to four dependent grandparents, and would thus give as wide a range of benefits to the alien family as to the citizen family. Nonresident alien relatives may thus be discriminated against (Maiorano v. B. & O. R. R. Co., 213 U. S. 268, 29 Sup Ct. 424, 53 L. Ed. 792; Gregutis v. Waclark, 86 N. J. Law, 610, 614, 92 Atl 354). and they are expressly excluded or paid in half the amounts provided for residents under some of the acts. Although the language of the statute is not wholly free from ambiguity, the purpose to discriminate rather than to confer equal rights upon them and to limit the award to 25 per cent. of decedent's wages is evident This is further indicated by the fact that section 25 provides for the payment of the full commuted amount of compensation to resident dependents, where section 17 provides for the payment of only one-half the amount to aliens. The practical result of an effort to reconcile the inconsistent phraseology of the two sections is a revision rather than an interpretation of the latter section. "Whether the reason for doing so was good or not it was for the Legislature to decide, and it adopted this policy in such plain language that we are not justified in construing" the words "father or mother" as if they read "each parent." Matter of Meng. 188 App. Div. 69, 80, 176 N. Y. Supp. 290, 297, approved, 227 N. Y. 264, 272, 125 N. E. 508. The award may be made to one dependent parent, but not to both. The order and award should be modified by striking out the award in favor of Panagious Skarpeletzos, the mother of deceased, and as thus modified affirmed, with costs to the appellants. Hiscock, C. J., and Chase, Collin, Crane, and Andrews, JJ., concur. Ordered accordingly. FRANCE v. KINGSTON SHIPBUILDING CORPORATION ET AL (Supreme Court of New York, Appellate Division, Third Department, March 3, 1920.) 180 New York Supplement 666. MASTER AND SERVANT AWARD UNDER WORK MEN'S COMPENSATION LAW HELD EXCESSIVE UNDER EVIDENCE AS TO PERIOD OF DISABILITY. THE Award of compensation to injured employee for disability held ex cessive under the evidence as to the period of disability. (For other cases, see Master and Servant, Dec. Dig. § 405[6]-) Appeal from State Industrial Commission. In the matter of the claim of Demetrius J. France for compensation under the Workmen's Compensation Law (Consol. Laws, c. 67) against the Kingston Shipbuilding Corporation, employer, and the Liberty Mutual Insurance Company, insurance carrier. From an award in favor of claimant, made by the State Industrial Commission, the employer and insurance carrier appeal. Award reversed, and matter remitted. Argued before John M. Kellogg, P. J., and Woodward, Cochrane, Henry T. Kellogg, and Kiley. JJ. Blauvelt & Warren, of New York City (Francis J. MacIntyre and Maurice J. O'Callagham, both of New York City, of counsel), for ap pellants. Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent. sus COCHRANE, J. The award herein is excessive. On September 11, 1918, claimant fell from a scaffold, injuring his right testicle and taining a hernia. He went to a hospital, and on October 6, 1918, the Islight, was repaired. He was discharged from the hospital October 25th. injured testicle was removed, and the hernia, which seems to have been About three weeks after leaving the hospital a difficulty developed in his left testicle, which the commission has found resulted from his fall On February 11, 1919, he was examined by Dr. Hannock, a medical examiner of the commission, who reported that in disabled, and that "in the course of 4 to 6 weeks he would be able to from the scaffold. his opinion the claimant was able to do some work and was not totally resume his old employment, particularly if he uses his supportMarch 13, 1919, a hearing was had before the commission. That would be able to resume his old employment in from 4 to 6 weeks. On was The more than 4 weeks after Dr. Hannock said that he thought the claimant I claimant was examined at length, but neither then nor at any subsequent time did he testify that he was unable to work, or that the injuries he had previously received then caused him any difficulty, or interfered with his ability to perform manual labor. He testified that the pain in the left testicle had disappeared, and also the swelling since January 1st. On May 3, 1919, another hearing was had, at which the physicians of the claimant were examined at length. One of them testified that in his opinion the period of disability of the claimant due to his operation would be about 10 weeks. Another testified that he had treated the claimant for 2 or 3 months after his operation. A physician of the employer testified that he had examined the claimant the day of the former hearing, March 13th, and that he was then able to perform his regular work. No other evidence appears as to the period of disability. The commission held the matter in abeyance until July 1st, when they made an award of $15 weekly, covering the entire period of 42 weeks from the date of the accident to the date of the award, amounting to $630, and continued the case for further hearing. According to the report of Dr. Hannock, medical examiner of the commission, compensation should not have been awarded for a period later than 4 to 6 weeks after February 11, 1919, when the report was made, and more particularly so because the claimant, as a witness on March 13, 1919, failed at that time to give any testimony indicating_that Dr. Hannock was mistaken. The examination and report of Dr. Hannock were made prior to the hearings before the commission, and it would seem that his report cannot be considered as evidence. If it be disregarded, the most favorable consideration of the evidence indicates that the claimant could have worked in December or January. In any event, there was no disability later than March. The award of compensation until July was erroneous. The award should be reversed, and the matter remitted to the commission. All concur. IN RE GREENEY. (Supreme Court of New York, Appellate Division, Third Department. March 3, 1920.) 180 New York Supplement 648. MASTER AND SERVANT - INJURY TO EMPLOYEE MISUNDERSTANDING INSTRUCTIONS "AROSE OUT OF AND IN COURSE OF EMPLOYMENT" WITHIN WORKMEN'S COMPENSATION LAW. Where a deaf employee failed to understand instructions to take kegs to a place adjoining employer's premises for rinsing with hot water, and suggested another place to which they were taken with the approval of his fellow workman in control of the work the employee's death caused by the bursting of a keg was from injury arising out of and in the course of the employment; he having acted in good faith, with intent to benefit employer, without knowing that he was disobeying orders. (For other cases, see Master and Servant, Dec. Dig. § 375[1].) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) Appeal from State Industrial Commission. Proceeding under Workmen's Compensation Law (Consol. Laws, c. 67) by Mary Greeney, for compensation to herself and children for death of husband, Peter Greeney, opposed by the Haberle-Crystal Spring Brewing Company, employer, and the Interborough Mutual Indemnity Insur |