At the trial the complaint was dismissed upon the ground that the remedy given to the employee against, the employer, under section 11 of the Workmen’s Compensation Law, excludes all other remedies.
The complaint showed that the plaintiff, a boy under sixteen years of age, was employed by the defendant in operating a saw in violation of subdivision 1 of section 93 of the Labor Law (as amd. by Laws of 1913, chap. 464). That section absolutely prohibits such employment. Its violation is a misdemeanor. (Penal Law, § 1275.) The boy, therefore, was injured by the criminal act of the defendant. The liability arose not- on account of the defendant’s negligence but because plaintiff is the victim of his crime. (Amberg v. Kinley, 214 N. Y. 531; Karpeles v. Heine, 227 id. 74.) The employer, when sued by the infant, cannot shield himself by alleging his own crime, but he must respond as if the employment were valid. But the boy, who was not a criminal, may. at his election rely upon the employment or repudiate it. An infant who agrees to work for a fixed wage can repudiate the contract and sue upon a quantum meruit, or he may affirm and sue upon the contract. Infancy is a privilege to him — not a defense to his employer. The alleged employment having been in absolute violation of law, section 11 of the Workmen’s Compensation Law does not apply. (Wolff v. Fulton Bag & Cotton Mills, 185 App. Div. 436; Karpeles v. Heine, supra.) But if the infant seeks the benefit of the Workmen’s Compensation Law, his infancy cannot shield the employer. (Kenny v. Union Railway Co., 166 App. Div. 497; Ide v. Faul & Timmins, 179 id. 567.) The recent case of Karpeles v. Heine (supra) clarifies the situation and seems to remove any doubt which might have previously existed in a case, where the employment of the child is absolutely prohibited.
It is now urged that the complaint does not show that the saw in question was a band saw or circular saw. A band saw and circular saw are the only ones referred to in section 93 of the Labor Law, and the allegation that the boy was injured while operating a saw in violation of that section is, on demurrer, equivalent to a statement that it was a band saw or a circular saw.
*413“It is the general rule, however, that a complaint when challenged for insufficiency is to be liberally construed and that the pleader is to be deemed to have alleged not only the facts set forth but those also to be implied therefrom by reasonable and fair intendment. (Coatsworth v. Lehigh Valley R. R. Co., 24 App. Div. 273; affd., 156 N. Y. 451; National Contracting Co. v. Hudson R. W. P. Co., 170 id. 439; Ells-worth v. Agricultural Society,99 App. Div. 119; Milliken v. Western Union Tel. Co., 110 N. Y. 403.)” (Peterson v. Eighmie, 175 App. Div. 113, 115.)
I favor a reversal and a new trial, with costs to the appellant to abide the event.
Kiley, J., concurs.
Order arid judgment affirmed, with costs.