air; he says as much as 4 or 5 feet. He testifies that, when the first piece of ice was placed in the building, he called the attention of the foreman to the danger, saying: "If it hits you, you will find out." The skid may have been an inadequate appliance; but its inadequacy was fully understood by the plaintiff, as well as the danger arising therefrom. The plaintiff admits that he had previously had much experience in handling ice. Standing on the logs outside the skid, as he had previously done while unloading the 12 loads, he was in a place of safety. No reason is apparent why he could not from that position have released the piece of ice in question when it wedged in the doorway. The extreme width of the skid and of the doorway was only 21⁄2 feet, and a piece of ice 20 inches wide could easily have been manipulated by means of his ice tongs from the side of the skid. Instead of doing so, he placed one foot, not even on the skid, but on the log, in the space between the parts of the skid. This position he assumed with positive knowledge of the natural consequences. It was a matter entirely within his own control. There was no necessity for haste, nor any occasion for excitement, nor anything in the situation to disturb his judgment, or produce a lack of realization. of the natural consequences of his act. He was free to determine his position. The logs presented an uneven surface on which to stand; but the fact of their firmness and stability is placed beyond question by the testimony of plaintiff. It seems clear that the task before the plaintiff could readily have been accomplished while he remained standing beside the skid, and that there was no necessity which required him to place himself in a position of known danger. The case is not at all like that of Maloney v. Cunard Steamship Co., 217 N. Y. 278, 111 N. E. 835, cited by plaintiff. There it was necessary for the plaintiff to use the defective appliance in the manner in which he was using it at the time of the accident. Here no such necessity existed. The manner of its use constituted contributory negligence. The burden of establishing contributory negligence was on the defendant, but on the testimony of the plaintiff himself his negligence clearly contributed to the accident.

The plaintiff urges that the question of contributory negligence is eliminated, for the reason that the case falls within the Workmen's Compensation Law (Consol. Laws, c. 67), and, if so, section 11 makes that question unimportant. Ice harvesting is a hazardous employment under that act, but such employment was not in this instance "carried on by the employer for pecuniary gain," within the meaning of the statute (section 3, subdivision 5). The plaintiff was in reality a farm laborer (section 3, subdivision 4), and the ice was being stored for use on the farm, and only as incidental as farm purposes. Hence the case is not within that act.

The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. The court disapproves the finding that the plaintiff was not negligent. All concur.

SUPREME COURT OF NEW YORK.

APPELLATE DIVISION, THIRD DEPARTMENT.

SPERDUTO

V.

NEW YORK CITY INTERBOROUGH RY. CO.*

3. MASTER AND SERVANT — WORKMEN'S COMPENSATION ACT-PAYMENT OF AWARDS.

In view of Workmen's Compensation Act, §§ 25, 50, held, that it was improper for the state Industrial Commission, pursuant to previous resolution, to require self-insurer, whose solvency was not questioned to pay into the state fund the present value of an award to a widow and children of a deceased employee; section 27 of the Compensation Law, as amended by Laws 1917, c. 705, § 7 contemplating such an order only in a special case and after notice, and the order being also improper in view of the hardship on such insurer because of financial stringency at the time it was made.

(For other cases, see Master and Servant, Dec. Dig. § 383.)

4. MASTER AND SERVANT ACT- VALIDITY.

WORKMEN'S COMPENSATION

Workmen's Compensation Law, § 27, as amended by Laws 1917, c. 705, § 7, if authorizing the state Industrial Commission to require mutual insurers and self-insurers, whose solvency was not doubted, to pay into the state fund the present value of future installments of compensation under awards for death claims, is unconstitutional, as discriminating against such insurers and in favor of others, etc.

(For other cases, see Master and Servant, Dec. Dig. § 347.)

6. MASTER AND SERVANT — WORKMEN'S COMPENSATION -INSURANCE FUND-CONSENT TO PAYMENTS.

While Workmen's Compensation Law, § 50, as amended by 1917, c. 705, § 9, provides that the state Industrial Commission may require an agreement on the part of any employer to pay any award computed under section 27 into a special fund or the state fund as a condition to selfinsurance, such consent does not require the employer to observe arbitrary and illegal orders of the commission.

(For other cases, see Master and Servant, Dec. Dig. § 383.) Cochrane and Henry T. Kellogg, J.J., dissenting.

Appeal from State Industrial Commission.

In the matter of the claim of Carmela Sperduto, widow of Angelo Sperduto, deceased, for the death of her husband, against the New York City, Interborough Railway Company, employer and self-insurer. From a determination of the State Industrial Commission, made May 21, 1918, requiring the employer and self-insurer to pay into the state fund the present value of the award, the employer appeals. Determination reversed

Argued before John M. Kellogg, P. J., Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ.,

* Decision rendered, Jan. 8, 1919. 173 N. Y. Supp. 834.

Alfred T. Davison, of New York City (Addison B. Scoville and E. Crosby Kindleberger, both of New York City, on the brief), for appellant. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

Robert W. Bonynge, of New York City, for the Commission.

JOHN M. KELLOGG, P. J. [1] This is an appeal from a determination of the state Industrial Commission, June 28, 1918, requiring the appellant, a self-insurer, to pay in cash to the commission the alleged present worth of the weekly payments directed to be made by an award of March 16, 1918, to a widow during widowhood and to minor children during dependency. The Adams Case, 175 App. Div. 714, 161 N. Y. Supp. 919, and 220 N. Y. 579, 114 N. E. 1046, held that such a direction could not be made with reference to an award to a widow, but after the decision of that case section 27 of the Workmen's Compensation Law was amended by chapter 705 of the Laws of 1917, and the action of the commission is based upon that amendment. We reversed the determination in the Adams Case, upon the ground that there was no legal basis upon which the commission could determine when, if ever, the widow would remarry, and that sections 27 and 25 should be read together, and that the payment of a gross sum was only authorized in exceptional cases where the commission found in its discretion that the interest of justice so required. The Court of Appeals affirmed our decision upon the first ground stated, without considering the second ground. Its decision did not destroy the effect of our decision in that respect. It was content to rest its decision upon the one ground.

[2] In 181 App. Div. 962, 168 N. Y. Supp. 1130, "In the Matter of the Adoption of a Resolution Requiring the Payment into the State Fund of the Present Value of Death Benefits Pursuant to the Provisions of Section 27 of the Workmen's Compensation Law, as Amended by Chapter 705 of the Laws of 1917," the commission asked this court to determine whether the amendment of 1917 applied to awards made before its enactment, and we concluded it did. The Court of Appeals (224 N. Y. 13, 119 N. E. 1027) dismissed the appeal, upon the ground that the resolution presented no matter which the court could pass upon. We are therefore free to consider the effect of section 27, as amended, as applied to the facts in this case.

The commission duly made an award of death benefits of $4.21 per week to the widow, who was then about 41 years of age, during widowhood, and $1.29 per week to each of the four children, during dependency. The awards to the children, under the act terminated respectively when they became 18 years of age. Upon the remarriage of the widow she receives, under the act, two years' compensation, in one sum. The award to each child was 10 per cent. of the weekly wage, and upon the death of the widow any surviving child was thereafter to receive 15 per cent., instead of 10 per cent. The commission has not changed the award, and it stands as its final judgment, and the mandate of the statute, as to the amount which the appellant must pay, and which the widow and children shall receive.

May 21, 1918, the commission adopted a resolution that every mutual association and every self-insurer shall, on or before July 31, 1918, "pay into the aggregate trust fund of the state insurance fund the present value as of that date of the future installments of compensation under every award against such carrier for death claims arising from accidents occurring between July 1, 1917, and December 31, 1917, both inclusive, together with the necessary expense loading thereon," and further provided the manner in which the computation should be made. On June 28, 1918, pursuant to that resolution, the commission directed the appellant to pay into the state insurance fund $5,456.11, which it determined was the net present value of the future installments, together with loading for administration expenses, 4 per cent., $218.24, making the total $5,674.35.

[3-6] The employer had duly qualified as a self-insurer, and no question was raised as to its ability to meet its obligations as such. No findings of fact that conclusions of law were filed as required by section 23 of the act. There was no hearing or inquiry as to the facts, upon notice, and the defendant did not have a day in court. The determination appealed from, therefore, must rest solely upon the resolution, as the arbitrary act of the commission, based upon no fact with references to this case, except that the defendant is a self-insurer. It is evident that the determination singles out the self-insurer and the mutual insurance association, and arbitrarily requires them to pay a gross sum, while no such requirement is made of the stock companies or the state insurance fund. The terms of the section permit the commutation of all death benefits and other compensation for a period of 104 weeks or more; the resolution applies only to death claims for accidents occurring between July 1, 1917, and December 31, 1917. In cases of total permanent disability section 15 allows to the injured employee two-thirds of the weekly wages for life, which may equal or be greater than the weekly payments to a widow, and may continue for many years. It is difficult to understand why the self-insurer and the mutual association were not required to commute the payments for such an injured employee.

These considerations make it clear that the resolution was not based on any possible feeling of insecurity as to the payments to be made by the self-insurer and the mutual association. If the commission may make such discrimination, the question still remains whether it may act arbitrarily, or whether its discretion must be moved by some fact in the particular case, as we held in the Adams Case; also whether the determination is not an illegal interference with the defendant's property rights.

The amendment to section 27, made in 1917, it is claimed avoids the effect of the decision in the Adams Case. It provides:

"Depositing Future Payments.-If an award under this chapter requires payment of death benefits or other compensation by an insurance carrier or employer in periodical payments, the commission may, in its discretion, at any time, any provision of this chapter to the contrary notwithstanding, compute and permit or require to be paid into the state fund an amount equal to the present value of all unpaid death benefits or other compensation in cases in which awards are made for total permanent or permanent partial disability for a period of one hundred and four weeks or more, for which liability exists, together with such additional sum as the commission may deem necessary for a proportionate payment of expenses of administering the fund so created."

The moneys so paid constitute an aggregate and indivisible fund, the employer is to be discharged from further liability, and this fund is to be kept separate from other moneys of the state fund, and the state fund is not liable for any losses or charges against such special fund. The section also provides:

"All computations made by the commission shall be upon the basis of the survivorship annuitants' table of mortality, the remarriage tables of the Dutch Royal Insurance Institution and interest at three and one half per centum per annum."

The commission has exercised very extraordinary powers, which entirely change, in the case of the self-insurer and the mutual insurer, the plan of payment fixed by the Legislature in compensation cases. The theory of the law is that the business, in an easy way, by periodical payments, must bear the losses sustained by the employer or his dependents, and that the losses shall be paid in substantially the manner in which wages were paid, but that the commission may, in a given case, commute the payments to one or more lump sums, in its discretion and in the "interest of justice." The commission has proceeded upon the

theory that the Legislature has substantially given it the power to reverse section 25 and arbitrarily to make new laws in certain cases-a power which the Legislature has not the authority to give.

If the commission has correctly construed section 27, it is clearly unconstitutional. But the courts will hesitate in construing a statute in a way which makes it unconstitutional, and will go to the limit of construction in sustaining it. Every reasonable intendment is in favor of its validity. There is nothing in the section whch permits the commission to make an omnibus order like the one in question, discriminating against certain employees and certain kinds of insurance. The clause in the section, that the commission may commute one or more awards by one or more resolutions, may be construed as meaning that the commission may hold a hearing on notice, inquire into the facts as to an insurer which may have several awards against it, upon facts similar in their nature, and that an investigation and a separate trial in each of such cases is not necessary. It may have other proper construction, but it was not intended to permit the commission arbitrarily to change the Workmen's Compensation Law, and commute awards, without notice and without hearing, based solely on the kind of insurance accepted.

By section 50 of the act the employer may furnish one of three kinds of insurance: (1) Subdivision 1 provides for insurance in the state fund; (2) subdivision 2 for insurance in a stock company or mutual association authorized by law to transact such business; or (3) subdivision 3, by the employer qualifing, with the approval of the commission, as a self-insurer. The commission has the right to revoke the consent at any time for cause shown. It seems idle for the statute to provide for three kinds of insurance, unless each insurer is to stand in the same position, with equal liability and responsibility. The payments under the act are to be the same, without regard to the kind of insurance furnished. If an extra burden is placed upon the self-insurer and the mutual association, solely because they are such, it is an illegal discrimination and without effect. When United States 44 per cent. bonds are selling at a discount; when the best railroad companies in the country cannot borrow money at 6 per cent., and as a favor and in the interest of the public, the government is advancing necessary money to them at 6 per cent., there can be no question but that computing the value of the award on a basis of 31⁄2 per cent. interest, and requiring cash payment within a few days, is a heavy burden. Weekly payments of a small amount are not a serious burden upon a self-insurer, but the requirement that the present value of all future payments shall be made in cash at once would he ruinous.

Laying aside all other considerations, if a sum is payable each week by a business to a woman during her widowhood, it is a grievous burden to compel it to pay the present value of such payments at once in cash. A government, a bank, insurance company, corporation, or individual, cannot ordinarily pay at once the cash present value of all its obligations payable in the future. Credit is the life of business.The extent of the burden cast upon the appellant as a self-insurer, by the determination, is not the only consideration; an important fact is that it is required to liquidate its liability in a manner different from that required of other employers and insurers, and such requirement is based solely upon the fact of self-insurance.

If the commission may be justified, in any case, in casting such a burden upon an employer, there must be facts and circumstances in the case, and shown in the findings, which move and compel its discretion in that respect. Its action cannot be arbitrary. It is said that such commutation makes the employee more secure. The same may be said of insurance in a stock company. But it is not entirely clear that the employee is made more secure. That is a question which the future alone can determine. Disaster may overtake the special fund, unwise