EMPLOYERS' LIABILITY ACT AND ELECTIVE COMPENSATION LAW. The Labor Law. Chapter 31 of the Consolidated Laws. Article 14. NOTE: The provisions of Section 200 to 204 inclusive of this article of the Labor Law have no application to the employments enumerated in Section 2 of the Workmen's Compensation Law, as to any accident occurring since July 1, 1914. Sections 205 to 212 inclusive comprise the Elective Compensation Statute. These sections have no application except to the employments which are omitted from Section 2 of the Workmen's Compensation Law, and so far as is consistent therewith are superseded by the elective provisions added to the compensation law in 1916. Section 200. accident. 202. Employer's liability for injuries. Assumption of risks; contributory negli- 202-a. Trial; burden of proof. 204. Existing rights of action continued. 206. Liability to pay compensation; notice of 207. Amount of compensation; persons entitled; physical examination. 208. Settlement of disputes. 209. 210. Preferential claim; not assignable or sub- 211. Reports of compensation plan. When per § 200. Employer's liability for injuries. sonal injury is caused to an employee who is himself in the exercise of due care and diligence at the time: 1. By reason of any defect in the condition of the ways, works, machinery, or plant, connected with or used in the business of the employer which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and intrusted by him with the duty of seeing that the ways, works, machinery, or plant, were in proper condition. (Subd. 1 am'd by L. 1910, Ch. 352.) 2. By reason of the negligence of any person in the service of the employer intrusted with any superintendence or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee. The employee, or in case the injury results in death, the executor or administrator of a deceased employee who has left him surviving a husband, wife or next of kin, shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer nor engaged in his work. The provisions of law relating to actions for causing death by negligence, so far as the same are consistent with this act, shall apply to an action brought by an executor or administrator of a deceased employee, suing under the provisions of this article. If an employer enters into a contract, written or verbal, with an independent contractor to do part of such employer's work, or if such contractor enters into a contract with a subcontractor to do all or any part of the work comprised in such contractor's contract with the employer, such contract or subcontract shall not bar the liability of the employer for the injuries to the employees of such contractor or subcontractor, caused by any defect in the condition of the ways, works, machinery, or plant, if they are the property of the employer or are furnished by him, and if such defect arose, or had not been discovered or remedied, through the negligence of the employer, or of some person intrusted by him with the duty of seeing that they were in proper condition. (Sub. 2 am'd by L. 1910, Ch. 352.) For definition of the word "plant," see Wiley vs. Solvay Process Company, 215 N. Y. 584. Lipstein vs. Provident Loan Society, 154 App. Div. 732. Fresusk vs. Pittsburg Contracting Co., 159 App. Div. 356. Kenz vs. Bernheimer & Schwartz Pils. Brewing Co., 162 App. Div. 777. Drury vs. American Fruit Product Co., 163 App. Div. 509. For the responsibility of the owner for the safety of an employee of a contractor, see Kenz vs. B. & S. Pilsner Brewing Co., 162 App. Div. 777. § 201. Notice to be served. No action for recovery of compensation for injury or death under this article shall be maintained unless notice of the time, place and cause of the injury is given to the employer within one hundred and twenty days and the action is commenced within one year after the occurrence of the accident causing the injury or death. The notice required by this section shall be in writing and signed by the person injured or by some one in his behalf, but if from physical or mental incapacity it is impossible for the person injured to give notice within the time provided in this section, he may give the same within ten days after such incapacity is removed. In case of his death without having given such notice, his executor or administrator may give such notice within sixty days after his appointment, but no notice under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury if it be shown that there was no intention to mislead and that the party entitled to notice was not in fact misled thereby. If such notice does not apprise the employer of the time, place or cause of injury, he may, within eight days after service thereof, serve upon the sender a written demand for a further notice, which demand must specify the particular in which the first notice is claimed to be defective, and a failure by the employer to make such demand as herein provided shall be a waiver of all defects that the notice may contain. After service of such demand as herein provided, the sender of such notice may at any time within eight days thereafter serve an amended notice which shall supersede such first notice and have the same effect as an original notice hereunder. The notice required by this section shall be served on the employer, or if there is more than one employer, upon one of such employers, and may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. The notice or demand may be served by post by letter addressed to the person on whom it is to be served, at his last known place of residence or place of business, and if served by post shall be deemed to have been served at the time when the letter containing the same would be delivered in the ordinary course of the post. When the employer is a corporation, notice shall be served by delivering the same or by sending it by post addressed to the office or principal place of business of such corporation. (As am'd by L. 1910, Ch. 352.) In the notice to serve pursuant to this section the accident should be so identified that the master's attention is called to the exact occurrence. Logerto vs. Central Building Co., 198 N. Y. 390. If the notice is defective, the case will be treated as a common law action and not within the Employers' Liability Act. see Jackson vs. Green, 201 N. Y. 76. For other cases upon the sufficiency of the notice, see Bertolami vs. U. N. & C. Co., 198 N. Y. 71. Hurley vs. Alcott, 198 N. Y. 132. Rodzborski vs. American Sugar Refining Co., 210 N. Y. 262. For liability where notice under this section is waived, Dailey vs. Stoll, 211 N. Y. 74. § 202. Assumption of risks; contributory negligence, when a question of fact. An employee by entering upon or continuing in the service of the employer shall be presumed to have assented to the necessary risks of the occupation or employment and no others. The necessary risks of the occupation or employment shall, in all cases arising after this article takes effect, be considered as including those risks, and those only, inherent in the nature of the business which remain after the employer has exercised due care in providing for the safety of his employees, and has complied with the laws affecting or regulating such business or occupation for the greater safety of such employees. In an action brought to recover damages for personal injury or for death resulting therefrom received after this act takes effect, owing to any cause, including open and visible defects, for which the employer would be liable but for the hitherto available defense of assumption of risk by the employee, the fact that the employee continued in the service of the employer in the same place and course of employment after the discovery by such employee, or after he had been informed of the danger of personal injury therefrom shall not be, as matter of fact or as matter of law, an assumption of the risk of injury therefrom, but an employce, or his legal representative, shall not be entitled under this article to any right of compensation or remedy against the employer in any case where such employee knew of the defect or negligence which caused the injury and failed, within a reasonable time, to give, or cause to be given, information thereof to the employer, or to some person superior to himself in the service of the employer, or who had intrusted to him some superintendence, unless it shall appear on the trial that such defect or negligence was known to such employer, or superior person, prior to such injuries to the employee; or unless such defect could have been discovered by such employer by reasonable and proper care, tests or inspection. am'd by L. 1910, Ch. 352.) Assumption of risk by the employee is made a question of fact by this section and in an action brought under the Employers' Liability Act the plaintiff cannot be said to have assumed the risk of the accident as a matter of law. (As Clark vs. N. Y. Central & Hudson R. R. R. Co., 191 N. Y. 416. The rule established by this section in relation to the assumption of risk does not apply to an action brought against an employer under common law principles. Colleri vs. Turner, 215 N. Y. Memo. 675. § 202-a. Trial; burden of proof. On the trial of any action brought by an employee or his personal representative to recover damages for negligence arising out of and |