Boyle v. A. C. Cheney Piano Action Co.

H. T. Kellogg, J.:

The complaint alleges that the plaintiff was employed by the defendant in its factory; that while so employed he was seriously injured by the negligence of the defendant; that the defendant failed to supply the plaintiff with a safe place to work; that it directed him to undertake dangerous work; that it maintained machinery in its factory in an unsafe and improper condition; that it failed to protect plaintiff from injury by its machinery; that it omitted the use of safeguards and appliances to protect him; that it failed to disconnect its machinery when not in motion; that it failed properly to direct plaintiff in his work; that as a result of such omissions and other acts the plaintiff was injured. It is manifest that in all the allegations thus recited the plaintiff asserts no wrong as the cause of his injuries other than a neglect by the defendant of its duties as a master, owed to the plaintiff as its servant. The Workmen’s Compensation Law supplies an exclusive remedy for all accidental injuries arising from such omissions. (Workmen’s Compensation Law, § 11.) The allegations specified, therefore, state no cause of action.

The complaint also alleges that the defendant “ permitted plaintiff, being under sixteen years of age, to work on a saw and assist in operating, handling and cleaning the same, contrary to the provisions of section 93 of the Labor Law of the State of New York.” The section referred to forbids the employment of a child under sixteen years of age in the operation of certain machines, including “ circular or band saws.”' It is not alleged that the plaintiff was permitted to operate a saw either of the band or of the circular type. The same section also provides that no male child under the age of eighteen years “ shall be permitted or directed to clean machinery while in motion.” It is not alleged that the machinery which the plaintiff was permitted to handle and clean was in motion when he handled and cleaned it. The allegations, therefore, state no facts constituting violations of section 93 of the Labor Law. For this reason, as well as for the reasons hereafter to be stated for holding insufficient a further allegation of the complaint, it must be considered that the allegations quoted state no cause, of action.

The plaintiff also alleges that the defendant “ unlawfully employed the plaintiff in its said factory without procuring and filing the certificate required by section 70 of the Labor Law of the State of New York.” The plaintiff evidently intended to allege a violation of that portion of section 70 of the Labor Law which, after forbidding the employment in any factory of a child under the age of fourteen years, reads as follows: “ No child between the ages of fourteen and sixteen years shall be so employed, permitted or suffered to work unless an employment certificate, issued as provided in this article, shall have been theretofore filed in the office of the employer at the place of employment of such child.” The plaintiff contends that under the authority of Karpeles v. Heine (227 N. Y. 74) the act of employing him was in itself a tort; that the duty violated was not that of an employer to use care but rather the duty of persons generally not to employ a child; that the wrong was not committed in the course of an employment but before the employment was established; that, therefore, his injuries were not compensable under the Workmen’s Compensation Law. He forgets that compensation is payable for injuries, not if a wrong to which they are due occurs in the course of an employment, but, regardless of the commission of any wrong, provided only the injuries themselves arise from ,the employment in the course thereof. Whether or not the plaintiff was lawfully employed, the fact cannot be doubted that when he was injured the relationship of master and servant did in point of fact exist. The plaintiff had subjected himself to the orders and directions of the defendant, and when hurt was actually working upon machinery in the defendant’s factory in accordance with directions given. He undoubtedly could have collected his stipulated wages as employee for the work thus done. The reasoning that there was no employment because the statute forbade it is reducible to an absurdity. It would compel the deduction that, an employment being impossible because of the prohibition, a violation of the prohibition, though made a crime by the Penal Law, is equally impossible. Clearly the plaintiff’s injuries arose out of and in the course of his employment. That he has a remedy by filing a claim for compensation is supported by decisions of this court. (Ide v. Faul & Timmins, 179 Ápp. Div. 567; Kenny v. Union Railway Co., 166 id. 497.) The plaintiff contends that, although he may have such a • remedy, he may likewise maintain an- action against the defendant for the results of a wrong committed by it before it became an employer, as he might do were the defendant a third party who had wronged him. Section 29 of the Workmen’s Compensation Law does, give a remedy against a third party if injuries sustained are due to “ the negligence or wrong of another not in the same employ.” This defendant as the employer was in the same employ as the plaintiff employee. Moreover, the argument ignores that portion of section 11 of the Workmen’s Compensation Law which reads: “ The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his personal representatives, husband, parents, dependents or next of kin, or anyone otherwise entitled .to recover damages, at common law or otherwise on account of such injury or death.” The .liability of the employer under the Workmen’s Compensation Law for all injuries arising from an employment being exclusive, no action at law for such injuries will he even though the wrong causing them was done by the employer before he became an employer. For all these reasons the conclusion is irresistible that the plaintiff cannot maintain this action.

The order and judgment should be affirmed.

All concur, except John M. Kellogg, P. J., dissenting, with a memorandum, in which Kilby, J., concurs.