contract of employment was just as much of a maritime nature as was that of his employer. Any doubt that might have existed that an employee of a contractor to load a ship is, while thus engaged, in the performance of a maritime contract, was settled by the decision in Atlantic Transport Co. of W. Va. v. Imbrovek, supra. There, Mr. Justice Hughes, who delivered the opinion of the court, referring to the work of a longshoreman, said:

"The libelant was injured on a ship, lying in navigable waters, and while he was engaged in the performance of a maritime service. We entertain no doubt that the service in loading and stowing a ship's cargo is of thi character. Upon its proper performance depend in large measure the safe carrying of the cargo and the safety of the ship itself; and it is a service absolutely necessary to enable the ship to discharge its maritime duty. Formerly the work was done by the ship's crew, but, owing to the exigencies of increasing commerce and the demand for rapidity and special skill, it has become a specialized service devolving upon a class as clearly identified with maritime affairs as are the mariners.'" 234 U. S. at page 61, 34 Sup. Ct. at page 735 [58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157].

In Southern Pacific Co. v. Jensen, supra, the decedent was an employee of the Southern Pacific Company, a corporation organized under the laws of the state of Kentucky, where it had · its principal office. It also had an office at pier 49, North River, New York City. It had a contract to unload a cargo from a steamship lying alongside that pier. Jensen, in the discharge of his duties to his employer, drove onto the steamship an electric truck, where it was loaded with lumber. He then started to drive the truck from the ship, and while it was on the bridge connecting the ship with the pier his head came in contact with a piece of timber, and he was killed. The court held, reversing this court, that the New York State Industrial Commission had no jurisdiction to make the award under the Workmen's Compensation Law of that state, since the contract which Jensen was performing was maritime in its nature.

In Clyde Steamship Co. v. Walker, supra, the steamship company had taken a contract to unload a vessel. It employed Walker, a longshoreman, to assist in doing the work. While thus engaged he was injured. It was held, on authority of the Jensen Case, that at the time he received his injuries he was engaged in a maritime contract over which the admiralty courts had exclusive jurisdiction, that the New York State Industrial Commission had no authority to make the award and that the decision of this court in so holding was erroneous.

In view of these decisions, I am unable to reach a conclusion other than that Doey, at the time he lost his life, was engaged in a maritime contract, and if this view be correct, then the Industrial Commission had no authority to make the award in question.

This conclusion necessarily leads to the consideration of the second question.

[5] I am of the opinion that the employer and insurance carrier were in a position to question the jurisdiction of the commission to make the award. The only authority it had to make the award was that derived from the statute. The power thus given was unknown to the common law; as well as the method of procedure. The rule is well settled that a court authorized by statute to entertain jurisdiction is a particular case only, if it undertakes to exercise jurisdiction in a case to which the statute has no application, does not acquire jurisdiction, and its judgment or determination, when made, is a nullity, and will be so treated whenever called in question by either a direct or collateral attack. Risley v. Phenix Bank of the City of New York, 83 N. Y. 318, 38 N. Y. 318, 38 Am. Rep. 421; State of Rhode Island v. Comm. Massachusetts, 12 Pet. 657, 9 L. Ed. 1233.

[6] The general rule is that lack of jurisdiction to render a judgment or determination may be asserted at any time, and the only exception of which I am aware is where jurisdiction depends upon a question of fact. If that be litigated and determined, then the question is settled by the judgment, which becomes final and conclusive unless set aside by a direct attack or reversed on appeal therefrom. O'Donoghue v. Boies, 159 N. Y. 87, 53 N. Ë. 537; Ferguson v. Crawford, 70 N. Y. 253, 26 Am. Rep. 589. In all other cases where there is a lack of authority to hear and determine the subject-matter of the controversy, and adjudication is a nullity, and will be so declared at the instance of a party affected thereby. Matter of Will of Walker, 136 N. Y. 20, 32 N. E. 633.

[7] The employer and insurance carrier therefore were not, in my opinion, estopped from questioning the jurisdiction of the commission. It had assumed to pass upon a subject over which the federal courts had exclusive jurisdiction. The fact that the determination of the commission had been acquiesced in to the extent that certain payments had been made thereunder and an appeal had not been taken therefrom could not prevent either of such parties raising the question at any time they saw fit. This follows from the fact that the determination was a nullity. It bound no one. It was a void determination.

My conclusion is that Doey, at the time of his death, was engaged in the performance of a maritime contract; that the compensation commission had no power to make the award; and that. the Appellate Division was right in reversing the determination and dismissing the claim.

The order appealed from should be affirmed, with costs against the State Industrial Commission.

Hiscock, C. J., and Chase, Collin, and Cuddleback, JJ., concur. Hogan and Cardoza, JJ., concur in result.

Order affirmed.

COURT OF APPEALS OF NEW YORK.

ANDERSON
V.

JOHNSON LIGHTERAGE CO. ET AL.

APPEAL OF STATE INDUSTRIAL COMMISSION.*

ADMIRALTY-INJURY TO EMPLOYEE.

A longshoreman while engaged in loading a vessel in navigable waters for his employer having a contract therefor was performing a maritime contract, and the Industrial Commission would have no jurisdiction of his claim for compensation for injuries received in such work. (For other cases, see Admiralty, Dec. Dig. § 20.)

Cuddeback, Hogan, and Cardozo, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department. Claim under the Workmen's Compensation Law (Consol. Laws, c. 67), by Louis Anderson against the Johnson Lighterage Company, employer, and the Employers Liability Assurance Corporation, Limited, insurance carrier. From an order of the Appellate Division (182 App. Div. 152, 169 N. Y. Supp. 645) reversing a determination of the State Industrial Commission and dismissing the claim, the State Industrial Commission appeals. Affirmed.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for appellant.

Bertrand L. Pettigrew, of New York City, for respondents.

MCLAUGHLIN, J. The claimant, at the time he was injured, was a longshoreman in the employ of the Johnson Lighterage Company, which had a contract to load a vessel in navigable waters. While thus engaged he sustained an injury by slipping on a pier from which the cargo was being taken. He made a claim under the Workmen's Compensation Law, and the Industrial Commission allowed the same. Its award was reversed by the Appellate Division, the claim dismissed, and the commission appeals to this court.

In my opinion, for the reasons stated by me in Matter of Doey v. Howland Co., Inc., 120 N. E. 53, decided herewith, Anderson, at the time he was injured, was engaged in performing a maritime contract. The Industrial Commission therefore had no jurisdiction to make the award; it was properly vacated by the Appellate Division, and the claim dismissed.

The order of the Appellate Division therefore should be affirmed, with costs against the State Industrial Commission. Hiscock, C. J., and Chase and Collin, JJ., concur. Cuddeback, Hogan, and Cardozo, JJ., dissent.

Order affirmed.

Decision rendered, June 4, 1918. 120 N. E. Rep. 55.

COURT OF APPEALS OF NEW YORK.

KEATOR ET AL.

V.

ROCK PLASTER MFG. CO. ET AL.

APPEAL OF STATE INDUSTRIAL COMMISSION.*

ADMIRALTY-INJURY TO EMPLOYEE.

An employee of a plaster manufacturing company while engaged in the performance of his duties in unloading rock from a vessel lying alongside a pier in East River was engaged in the performance of a maritime contract, so that Industrial Commission had no jurisdiction of his claim for injuries received in such work.

(For other cases, see Admiralty, Dec. Dig. § 20.) Cuddeback, Hogan, and Cardozo, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department. Claim by Grace Keator and another under Workmen's Compensation Law for the death of Alexander Keator, opposed by the Rock Plaster Manufacturing Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurance carrier. From an order of the Appellate Division (182 App. Div. 152, 169 N. Y. Supp. 645) reversing a determination of the State Industrial Commission, the Commission appeals. Affirmed.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for appellant.

Bertrand L. Pettigrew, of New York City, for respondents.

MCLAUGHLIN, J. On the 12th of June, 1917, Alexander Keator was in the employ of the Rock Plaster Manufacturing Company, which had a place of business at 150th street and East River, New York City. As a necessary incident to the carrying on of such business, rock was unloaded from vessels lying alongside a pier in the East River, and dumped on the dock near the plant. Keator had charge of the unloading of such rock. On the day mentioned, while actually engaged in the performance of his duties in unloading a vessel, then in navigable waters, he was struck by a load of rock being hoisted from the vessel to the dock and killed.

I am of the opinion, for the reasons stated by me in Matter of Doey v. Howland Co., Inc., 120 N. E. 53, decided herewith, that Keator, at the time he was killed, was engaged in the performance of a maritime contract.

The order appealed from therefore should be affirmed, with costs against the State Industrial Commission.

* Decision rendered, June 4, 1918. 120 N. E. Rep. 56.

Hiscock, C. J., and Chase and Collin, JJ., concur. Cuddeback, Hogan, and Cardozo, JJ., dissent.

Order affirmed.

SUPREME COURT OF NEW YORK.

APPELLATE DIVISION, THIRD DEPARTMENT.

CAMPBELL

V.

CLAUSEN-FLANAGAN BREWERY ET AL.

IN RE BREWERS' MUT. INDEMNITY INS. CO.*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATIONHEAT PROSTRATION—“ARISING OUT OF EMPLOYMENT.”

Death of employee, caused by heat prostration, arose out of employment only if employee, because of particular circumstances under which he was required to work, was subjected to a special hazard from the heat, not risked by public in general.

(For other cases, see Master and Servant, Dec. Dig. § 372.) 2. MASTER AND

SERVANT-REVIEW-INFERENCES FROM

UNDISPUTED FACTS.

Where facts, in workmen's compensation proceeding, are undisputed, the inference drawn therefrom. will not be reviewed on appeal.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

3. MASTER AND SERVANT-WORKMEN'S COMPENSATIONQUESTION OF FACT.

Whether an employee, who died from heat prostration, was specially affected by the severity of heat by reason of his employment, is a question of fact for commission's determination.

(For other cases, see Master and Servant, Dec. Dig. § 417[7].)

4. MASTER AND SERVANT-WORKMEN'S

COMPENSATION PROCEEDING-EVIDENCE-SUFFICIENCY - INJURY ARISING OUT OF EMPLOYMENT.

In workmen's compensation proceeding for death of employee, due to heat prostration, evidence held sufficient to justify inference drawn therefrom by commission that employee had not been specially affected by severity of heat by reason of his employment.

(For other cases, see Master and Servant, Dec. Dig. § 405 [4].)

Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Law (Consol. Laws, c. 67) by Rose Campbell for compensation for the death of Andrew Campbell, opposed by the Clausen-Flanagan Brewery, employer, and the Brewers' Mutual Indemnity Insurance Company, insurance carrier. From *Decision rendered, July 1, 1918. 171 N. Y. Supp. 522.