good defense to a complaint bad for failure to allege non-compliance with the same statute. See, also, Schattner v. American Tobacco Co., 100 Misc. Rep.

261.

Besides, it has never been contended, so far as I am aware, that the Compensation Law either expressly or impliedly repeals section 1902 of the Civil Code. That statute still remains in force and is applicable to all cases not included within the scope of the Compensation Law; and in the Shanahan case the court states that if the employer fails to comply with the statute "he is subject to such an action as the present one as a penalty;" and the court has already characterized that section as one brought under section 1902 of the Code. What relation, then, does section 11 of the Compensation Law bear to section 1902 of the Code? What effect does it have upon the Code provision?

Section 11 in effect takes out of the operation of section 1902 of the Code the right to enforce liability in certain cases embraced within the terms and conditions of the Compensation Law. It engrafts a limitation upon the liability enforceable under that section. In this respect it may be contended, I think, with some plausibility that section 11 operates as, and performs the functions of, a proviso. It is a subsequent enactment and it curtails the rights enforceable under a prior statute. If this section may be considered as a proviso, then the plaintiffs made out a prima facie case when they stated a cause of action under section 1902 of the Code. They were not bound to negative section 11 of the subsequent act. See Rowell v. Janvrin, 151 N. Y. 60, 67, 68.

I think this motion may be entertained notwithstanding that an answer containing denials has been interposed. See the following cases: Longenecker v. Longenecker, 140 N. Y. Supp. 403; Guggenheim v. Guggenheim, 159 id. 333; Spielberg v. Canada S. 8. Lines, 98 Misc. Rep. 304; Schleissner v. Goldsticker, 135 App. Div. 455; Olsen v. Singer Mfg. Co., 143 id. 142; O'Rourke v. Patterson, 157 id. 284; Field v. Empire Case Goods Co., 179 id. 253, 255.

It was held in Nilsen v. American Bridge Co., 221 N. Y. 12, that in a common law action where it does not appear from the complaint that plaintiff was engaged in an employment classed as hazardous in the Workmen's Compensation Law the question was not presented whether the plaintiff, by reason of said law, is barred from the right to recover; and that, therefore, a demurrer to the complaint cannot be sustained upon the ground that the complaint failed to state facts constituting a cause of action, merely because the remedy provided in the Compensation Law is exclusive. By analogy this reasoning seems to be applicable to the present

case.

The defendant's motion for judgment on the pleading should, I think, upon these considerations be denied. Ten dollars costs of motion. Motion denied, with ten dollars costs.

In such a case as the Nulle case, plaintiff employee must not only allege in his complaint that defendant employer has not complied with the compensation law's insurance requirements but must prove the allegation. The Appellate Term of the Supreme

Court, First Department, has so held in reversing a judgment of the Municipal Court of New York City: Barone v. Brambach Piano Co., 101 Misc. 669, Dec. 6, 1917. Text of opinion in the Barone case is in Bulletin 87, page 263.

An employee cannot maintain an action for negligence against his employer as a third party when injured while at work for him: Winter v. Doelger Brewing Co., 95 Misc. 150, May, 1916; 175 App. Div. 796, Dec. 29, 1916; 226 N. Y. Rep. 581, Mar. 21, 1919. Opinions in this case are in Bulletin 81, pages 124-126, and Bulletin 87, pages 251, 252.

Earlier opinions and decisions regulating procedure in negligence actions of employees against their employers are in Bulletin 81, pages 111-114, and Bulletin 87, pages 249-251. On December 9, 1919, the Court of Appeals affirmed the Appellate Division's judgment in Murphy v. Ludlum Steel Co., described in Bulletin 87, pages 126, 127, 253.

2. RELATIVE TO STATUTES OF OTHER STATES

The Workmen's Compensation Law of New York comes into jurisdictional rivalry with the compensation laws and employers' liability laws of other States in cases where employees hired in New York meet with accident in other States and where employees hired in other States meet with accident in New York. The law of these extra-territorial cases, as developed by New York court decisions, has been presented in Bulletin 81, pages 153-159, 236-248, Bulletin 87, pages 283-290, and this Bulletin, pages

212-225.

3. RELATIVE TO FEDERAL STATUTES

The Federal Employers' Liability Act totally excludes the New York Workmen's Compensation Law as concerns railroad accidents in intersate commerce: New York Central R. R. Co. v. Winfield, 244 U. S. 147. Court opinions in the Winfield case and court opinions defining interstate commerce relative to industrial accidents are in Bulletin 81, pages 159-181, Bulletin 87, pages 290-320, and this Bulletin, pages 226-242.

Amendments of 1917 to the United States Judiciary Code save to claimants in admiralty or maritime accident cases "the rights and remedies under the workmen's compensation law of any State." These amendments are intended to offset the decisions

of the United States Supreme Court in Southern Pacific Co. v. Jensen, 244 U. S. 205; and Clyde Steamship Co. v. Walker, 244 U. S. 255. Commissioner Sayer is of opinion that the provisions of the United States Judiciary Code, as they now stand, exclude action in admiralty relative to a maritime industrial accident occurring in New York and confine the injured employee exclusively to a compensation claim: Balais v. Brady and Gioe, S. D. R., vol. 19, p. 503, Mar. 11, 1919. He instances as authority the decision of Judge Learned Hand of the United States. District Court for the Southern District of New York in Matter of Steam Lighter Howell, below, page 251. The Appellate Division has affirmed death benefits in the Balais case with opinion which does not touch upon the point of exclusiveness. The opinion appears below, page 250. Relation of admiralty law to the New York Workmen's Compensation Law, as defined by court decisions and by legislation, has been presented in Bulletin 81, pages 29, 30, 160, 161, 181, 182; Bulletin 87, pages 320-379, and this Bulletin, pages 243-259.

0. EXTRA-TERRITORIALITY

Large employers owning manufacturing plants in New York and in other States shift employees from their New York plants to their plants in other States. Contractors in New York undertake jobs in other States and send workmen from New York to the jobs. Vessels owned by New York city employers carry their employees to distant United States waters. New Jersey and Pennsylvania factory owners, hotel keepers, etc., run in to New York City to hire help. The duties of New York employees, especially those near the state boundary, occasionally and temporarily carry them over the line. Such are the origins of extra

territorial compensation cases.

The right of an employee hired in New York by an employer carrying on in New York a business covered by the New York Workmen's Compensation Law to compensation when sent by his employer outside of the State and injured outside of the State upon his employer's business has been established by the decisions of the Court of Appeals in Post v. Burger & Gohlke, Klein v. Stoller & Cook Co., and Fitzpatrick v. Blackall & Baldwin Co.

The Klein and Fitzpatrick cases have also decided that an employee hired in New York by such an employer need not have worked for his employer in New York at all, but may have been hired for work to be done wholly without the State. The employers in these two cases were doing business in New York and so were amenable to the New York Workmen's Compensation Law. They had taken out insurance under its provisions.

The State Industrial Commission, in Lloyd v. Power Specialty Co. and Carlson v. Ogden Co., took the ground that non-residents of New York hired in New York and injured outside of New York were not entitled to compensation. The Appellate Division disapproved of this denial of compensation in the Carlson case (181 App. Div. 963) and the Commission later made an award to Carlson. The Appellate Division held that the Court of Appeals decision in Post v. Burger & Gohlke governed Carlson's award. Though Carlson's employer was a New Jersey corporation, the corporation did business in New York and Carlson

had worked for it in New York prior to his injury. The corpo

ration made pier shed doors.

he was installing in Texas.

Carlson was hurt by a door that

The opinions and decisions in the Post, Carlson and other precedent cases have been presented in Bulletin 81, pages 153– 159, 236-248; and Bulletin 87, pages 283-290.

But though the employee need not be a resident of New York in order to get compensation, the employer must be carrying on business within New York in order that the New York Commission may have jurisdiction. A contract of employment made in New York for work to be done outside of New York is not a basis for compensation under the New York Workmen's Compensation Law for an accident to the contracting employee occurring outside of New York, if the employer does not carry on his hazardous business within New York. In short, foreign employers are not subject to the New York Workmen's Compensation Law, even though they procure employees in New York. This phase of extra-territoriality has been developed by the New York Court of Appeals in its opinion in Smith v. Heine Safety Boiler Co. and by the Appellate Division in its opinion in Perlis v. Lederer.

In the Smith case, the Appellate Division affirmed death benefits to the widow of an employee because his contract of employment had been made in New York, though such contract had been made and the employer had moved his business out of New York long before the New York Workmen's Compensation Law had come into existence. The facts of Smith's employment are stated in the opinion upon which the Court of Appeals has based its reversal of the Appellate Division's order and its reversal of the claim. The Court of Appeals holds that "The duty to insure does not outlast the existence within our borders of the business or relation which calls it into life." It holds that an employer doing no business in New York is subject to no duty to insure his employees under the New York Workmen's Compensation Law, but excepts the case of such employees as such employer may send into New York. It finds no conflict between its decisions in the Smith and Post cases. Its opinion in full is as follows: