What was originally enacted as the Employers’ Liability Act (Laws of 1902, chap. 600) was thereafter included in the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36) as article 14, and subsequently amended by chapter 352 of the Laws of 1910. By section 201 of the Labor Law, included in said article, it is provided: “No action for recovery of com pensation for injury or death under this article shall be maintained unless notice of the time, place and cause of the injury is given to the employer * * It was held by this court and thereafter by the Court of Appeals that the provisions of section 202 of the act were available only to one who had served the notice provided by section 201. (O’Neil v. Karr, 110 App. Div. 571; Jackson v. Greene, 201 N. Y. 76, 80.) Section 202a was thereafter in 1910 added to this article. This section assumes to amplify section 202 by changing the rule as to the burden of proof upon the question of contributory negligence. By designating the section as 202a the intent of the Legislature would seem to be indicated to add to the privileges granted to a plaintiff under section 202. By inserting this provision in article 14 it would seem to follow as matter of law that the provisions of section 201 would apply, and that the rule of the common law thus changed would only apply, therefore, to actions brought after the giving of notice therein prescribed. It does not seem to me sufficient answer to this proposition that sections 205 to 212 were also added to this article: Those sections refer to a plan of settlement without action. The limitation, therefore, of section 201 to the effect that an action could not be brought under the article without the giving of notice would in no way affect the plan of settlement contemplated in these latter sections. I, therefore, vote for affirmance.
Woodward, J., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.