(dissenting). A number of employees of defendant commenced these actions at law against their employer to recover damages for injuries which they allege have been caused by a violation of the defendant’s common-law duty to furnish to them a safe place in which to work as rewritten and enlarged by the statutory duties imposed by sections 200 and 299 of the Labor Law. Such common-law duty had been imposed upon an employer since we became a nation in 1776 and adopted the common law of England both in our nation and in our State. Subsequently our Legislature from time to time has substituted increased statutory obligations which made the original common-law duty more stringent and onerous. (See, e.g., L. 1897, ch. 415, § 86, under which the owner, agent or lessee of a factory was required to ventilate properly and sufficiently each workroom; L. 1909, ch. 36, § 86, as amd., requiring one such as defendant here who operates a factory to provide suction devices and exhaust fans to remove dust, gases, fumes, vapors, fibers and other impurities as may be generated or released in the course of the business carried on in such a factory.) From time to time our Legislature has amended such statutes for workers, the latest amendment to section 299 of the Labor Law having been enacted in 1941.
*217Present Labor Law (§ 200) reads as follows: “ General duty to protect health and safety of employees. All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein. The board shall make rules to carry into effect the provisions of this section.”
Labor Law (§ 299), insofar as applicable, reads as follows: ‘ ‘ Ventilation, heating and humidity. 1. Every work room in a factory shall be provided with proper and sufficient means of ventilation, natural or mechanical or both, as may be necessary, and there shall be maintained therein proper and sufficient ventilation and proper degrees of temperature and humidity at all times during the working hours. If owing to the nature of the manufacturing process carried on in the factory work room excessive heat be created therein, there shall be provided, maintained and operated such special means or appliances as may be required to reduce such excessive heat.
“ 2. All machinery creating dust or impurities in quantities tending to injure the health of employees shall be equipped with proper hoods and pipes connected to an exhaust fan of sufficient capacity and power to remove such dusts or impurities; such fan shall be kept running constantly while such machinery is in use. If the board decides that such apparatus is unnecessary ¡ for the health and welfare of the employees, or that other means of protection may be provided to safeguard the health and welfare of the employees against such injurious dusts or impurities, it may adopt rules excepting such machinery from the operation of this subdivision, or prescribing such requirements as will effectuate the intent of this subdivision.
“3. If dust, gases, fumes, vapors, fibers or other impurities are generated or released in the course of the business carried on in any workroom of a factory, in quantities tending to injure the health of the employees, suction devices shall be provided which shall remove such impurities from the workroom, at their point of. origin where practicable, by means of proper hoods connected to conduits and exhaust fans. Such fans shall be kept running constantly while the impurities are being generated or released.” (See, also, Employers’ Liability Law, §§ 2, 4.)
*218We now turn to the allegations of the complaint. Plaintiffs allege that defendant has failed to comply with and has violated the quoted sections of our Labor Law in that it has failed to maintain its factory in accordance with the requirements of sections 200 and 299 of the Labor Law by reason of the fact that (a) it has not provided each workroom with sufficient means of ventilation, natural or mechanical; (b) it has not maintained in the workroom of its afore-mentioned factory proper and sufficient ventilation and proper degrees of temperature and humidity at all times during working hours; (c) it has not maintained the special means and appliances in its workrooms required to reduce their excessive heat; (d) it has not equipped its machinery with proper hoods and pipes connected to exhaust fans of sufficient capacity and power to remove dust, gases, fumes, vapors, fibers and other impurities; (e) its exhaust fans have not been kept running continuously while machinery which releases and generates dust, gases, fumes, vapors, fibers and other impurities is in use, and (f) it has not provided suction devices which remove dust, gases, fumes, vapors, fibers and other impurities from the workrooms of said factory at their point of origin by means of proper hoods connected to conduits and exhaust fans, and has not kept its fans running constantly while such impurities are being generated or released.
The plaintiffs then allege that by reason of the failure of defendant to comply with the quoted sections of the Labor Law, dust, gases, fumes, vapors, fibers and other impurities have been released in the workrooms of defendant’s factory and excessive heat has been created therein; that such dust, gases, etc., have been concentrated in the air of the workrooms and have created a danger to the lives, health and safety of plaintiffs ; that the excessive heat created in the workrooms has also constituted such danger; that plaintiffs have as a result inhaled large amounts of dust, gases, fumes, vapors, fibers and other impurities and as a result they have lodged in the lungs of plaintiffs and have created a condition known as silicosis, pneumonoconiosis or chalitis; that as a result the life expectancies of plaintiffs have been lessened, their resistance to numerous diseases have been wholly or partially destroyed and that they have been required to undergo extensive medical treatment and will require further treatment and hospitalization.
*219The defendant without answering the complaint moved (1) for judgment, pursuant to rule 106 of the Buies of Civil Practice, dismissing the complaint and each cause of action therein, upon the ground that the complaint and each cause of action alleged therein do not state facts sufficient to constitute a cause of action, and (2) for judgment, pursuant to rule 107, dismissing the complaint and each cause of action alleged therein, upon the ground that it appears from the complaint and the moving affidavit that the court lacks jurisdiction of the subject of the action and of each cause of action alleged in the complaint.
It thus appears that, for the purpose of these motions made as to each of the complaints, the allegations therein must be taken to be true.
The motions so made were granted upon the theory that whatever injuries the plaintiffs had suffered were compensable, if at all, only under the Workmen’s Compensation Law regardless of the fact that the defendant had failed to comply with the command of our Legislature that workmen be protected by definite mechanical means so as to avoid the injuries from which plaintiffs are suffering. The Workmen’s Compensation Law was primarily adopted in order to provide payment of compensation to those who were injured by accident or through occupational disease while employed although the employer was without common-law or statutory fault. This court has never held that an employer may disregard or violate the provisions of our Labor Law with impunity and be subject only to the penalty of paying workmen’s compensation for his wrongdoing. That would be to license the violation of statutes designed to protect workmen and to set at naught the legislative will.
There are other allegations in the complaint which were added so as to raise constitutional questions under both our State and Federal Constitutions. The complaints specify New York Constitution (art. I, §§ 6, 11, 18) and the Fourteenth Amendment to the United States Constitution. Such allegations are to the effect that no remedy under the Workmen’s Compensation Law has been given the plaintiffs because, although injured by their employer’s disregard and violation of our Labor Law sections enacted for their specific protection, they are not totally disabled and that it is only for total disablement through the *220diseases from which plaintiffs are suffering that workmen’s compensation is granted by our State. These plaintiffs are seeking redress for injuries from which they are suffering. “ Disability ” whether “ partial ” or “ total ” are words of art under definitions supplied in Workmen’s Compensation Law vocabulary. It is true that where workmen’s compensation is properly payable for “ disability ” our State statute provides no payment for partial disability suffered from dust disease but only for total disability suffered from dust disease. Plaintiffs accept that statutory situation. Years ago our court in an opinion written by Lehman, J., before he became Chief Judge, in Barrencotto v. Cocker Saw Co. (266 N. Y. 139), decided that no workmen’s compensation payments had been provided for sufferers from dust diseases acquired while working in industry and that, therefore, such sufferers had remedy by action at law since it would be violative of our State Constitution to take away a common-law and statutory action without substituting another remedy. For a period of approximately one year thereafter our Legislature provided compensation payments for both partial and total disability from dust diseases but then withdrew compensation unless the sufferer had become totally disabled (see L. 1935, ch. 254; L. 1936, ch. 887). That is still the decisional law of our State. Subsequently, Per Curiam opinions and memoranda of our court have been misinterpreted by some members of the Bar but generally courts and judges have realized that we have never held that those injured by dust disease incurred in industry either (a) because of disregard and violation of common-law or statutory duties imposed to safeguard workers in industry, or (b) because of injuries sustained constituting less than total disability as defined in the Workmen’s Compensation Law, although sustained without fault by the employer, were without remedy until the diseases had run their course to the point where the workers were totally disabled. (Scherini v. Titanium Alloy Co., 286 N. Y. 531, 541, Rippey, J., dissenting; Schwartz v. Queensboro Farm Products, 191 Misc. 778, 782, Walter, J.; Soraci v. Colonial Sand & Stone Co., 191 Misc. 1056, 1057, Pecora, J.; Cifolo v. General Elec. Co., 279 App. Div. 884, 885 [present case], Dore, J., dissenting.) The mere statement of the thought is its *221refutation for it would be monstrous to say that such sufferers were to be economic derelicts and without aid from any source as they coughed their way to total disablement. To so hold would be violative of sections 6 and 18 of article I of our State Constitution and the Fourteenth Amendment to the United States Constitution.
We agree with the decision below insofar as it relates to the applicability of the Statute of Limitations.
The judgment of the Appellate Division, insofar as it affirmed the dismissal of such parts of the causes of action as are based upon liability accruing prior to March 22, 1944, should be affirmed. The judgment appealed from should otherwise be reversed and the motions to dismiss the complaints be denied, with costs in all courts.
Loughran, Ch. J., Dye, Field and Froessel, JJ., concur with Desmond, J.; Conway, J., dissents in opinion in which Lewis, J., concurs.
Judgments affirmed.