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) sub-division 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

investments may be made, and the section expressly provides that losses in this fund shall not be made up from the state fund; so that, if there is a deficiency in this fund, the employee must suffer. If, for any reason, the determination or the section should be held invalid as to the employee, then the insurer might be liable under the original award, thus exacting double compensation. It is urged that subdivision 3 of section 50, as amended in 1917, provides that the commission may require an agreement upon the part of the employer to pay any award commuted under section 27 of the act into the special fund, or the state fund, as a condition of self-insurance. That does not mean that the employer must observe every arbitrary and illegal act of the commission, but only its lawful acts. The appellant, upon filing the securities and proofs required by the commission, qualified and was accepted as a self-insurer, January 27, 1914. The commission did not require, and then had no power to require, such an agreement.

Many times it is necessary for the court to determine the probable duration of a life, and it refers to the mortality tables to enable it, with or without other evidence, to determine the question. Such tables, 'from their public nature and general use, are treated as some evidence, but are not absolutely conclusive. The court may take into consideration any other facts proper to be considered. There are exceptional cases where, by long usage, the courts use, certain well-known tables to determine approximately the value of life and other interests. The use of such tables for compulsory adjustment are substantially limited to cases where the court is called upon to marshal assests, or distribute funds in court, which have been brought there in règular course, and the adjustment is a mere incident to the distribution or division, The Code of Civil Procedure and the general rules of practice provide that, where funds are paid into court to be invested for the benefit of a life tenant by the curtesy or in dower, the investment shall be at the expense of such person, but, if he is willing to take a gross sum, it may be computed by the use of the mortality tables, with an interest basis of 5 per centum. Rule 70; Code Civ. Proc. §§ 1569, 1617, 2717. In marshaling the assets of insolvent insurance companies, and in like cases, the courts, in distributing them, compute contingent interests upon the basis of mortality tables. But these are cases where the moneys are actually in the court and the distribution is made necessary by that fact. I know of no case where the court can compel a life tenant, or person entitled to receive an annuity, to receive, or the remainderman to pay, a gross sum in lieu of the life estate, unless such payment is necessary in order to marshal and distribute funds already in court. It cannot compel funds to be brought into court solely for the purpose of the liquidating of future contingent payments.

In dealing with the individual, the state is not all powerful. There are still certain limitations upon its right to interfere with the individual and his property. A person who is competent to do business, and who meets his obligations and does not violate the law, cannot be deprived of his property against his will, except under the authority given by the state Constitution to condemn real property for public use. If he has the life use of certain money, the state, under ordinary circumstances, cannot compel him to take a gross sum in lieu of it, or if he is required to pay a certain sum to an individual during the payment by a gross sum. The rights of parties as fixed by contract and by judgment should stand. If the payment of money depends upon the life or remarriage of a widow, the payor has the benefit of the chance that she may die or remarry at an early date and relieve him of the other payments, and any act of the state which deprives him of that benefit, and gives it to the state or another, is an invasion of his legal rights. The award of the commission, unappealed from, is a final determination of the rights of the parties. The commission, without being called to action by any particular

fact, arbitrarily determines that the assumed present value of this class of awards must be paid into the special fund, and that the appellant shall not have the benefit which may come from the death or remarriage, but that such benefit shall inure to the special fund. There is no good reason manifest why such order should have been made. If the state concludes that it is unwise to permit an employer to qualify as a self-insurer the act should be amended. The commission should not amend it indirectly by its arbitrary discrimination against such insurers. The state or its commission cannot speculate in the lives or marriage of individuals, or deal in contingencies. If there were a just doubt about the ability of the appellant to meet future payments additional security may be required at any time. If the amount of the present value of the awards were to be deposited in the fund as security, with the right to the insurer to receive the equitable part of the fund released from time to time by the children dying, arriving at 18 years of age, or ceasing to be dependent, or the widow remarrying or dying, the objections to the statute as it is constructed by the commission would be less forcible. But the commutation made is not for the benefit of the employer or the employee, but for the benefit of the state fund administered by the commission.

The appellant is not only required to pay the value of the future payments, but is required to pay 4 per cent. in addition for the purpose of administering the fund. We know of no case where a remainderman is compelled to pay the full value of the life estate and an addition of 4 per cent. for handling of the fund. Rule 70 provides that the life tenant must pay the expense of handling the fund paid into the public treasury for his benefit.

There is no certainty that any widow will remarry. It depends upon so many different and obscure circumstances that a guess can hardly be hazarded. The age, personal appearance, attractiveness, means, acquaintances, opportunity, the personal wishes of the woman, her health, and so many other considerations enter into the question, that there is no substantial basis for a judgment in a particular case whether or not she will remarry. We infer from section 27 that the Dutch Royal Insurance Institution is willing to take chances and wager upon the remarriage of a widow. There is a general understanding that, for a proper consideration, certain companies are willing to wager against any contingency. These are not insurances against an event which must happen, and the time of its happening is the only uncertain question, but are pure gambles whether or not certain things will or will not happen. On the question of remarriage of widows, appellant is solely interested in this particular widow, and it has bound itself to pay to her a certain sum during her widowhood. The continuance of the payments depends upon this widow, and not upon a certain average which may be arrived at as to widows in general. It is a mere guess as to whether this widow will remarry, or when she will remairy, if such an event happens. Here the commission not only has assumed to fix the value of the future payments to the widow, but also of the payments to each of the children, based upon a probable death under 18 years of age and continued dependency. It must have calculated when the lump sum, representing two years' payments, will be paid to the widow if she remarries, and when, if ever, the interest of any of the children will be increased one-half. If the statute is confined to special and extraordinary cases, where a hearing on notice shows that the interest of justice requires a commutation, we are not condemning it, We are only holding that its proper construction cannot justify the resolution or the order in question.

Certain computations, based upon the payments to be made to the widow, show: The payments during widowhood on a 31⁄2 per cent. interest basis with an allowance of two years' pay upon remarriage, would give a value of $3,536.18; upon a 5 per cent. interest basis, of $3,009.54; and upon a 6 per cent. interest basis, of $2,694.29. If the payments to

the widow are to be during her natural life, the commutation on the basis of 31⁄2 per cent. would be $3,928.50; on a 5 per cent. interest basis it would be $3,263.86; and on a 6 per cent. interest basis, $2,924.88. These figu es demonstrate that the interests of justice did not require the commutation in question, and that an unreasonable and unjust burden has been cast upon the appellant.

I favor reversal. All concur, except Cochrane and Henry T. Kellogg, JJ., who dissent.

SUPREME COURT OF NEW YORK.

APPELLATE DIVISION, THIRD DEPARTMENT

WAITE
V.

E. W. BLISS CO. ET AL.*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -APPEAL-DEATH OF CLAIMANT-SUBSTITUTION OF

REPRESENTATIVE-STATUTE.

Under Workmen's Compensation Law, § 23, subjecting appeals from determinations of Industrial Commission to practice applicable to appeals in civil actions, following death of claimant, awarded compensation, substitution must be had of representative of estate, before appeal by employer and insurer from award of commission to Appellate Division can be heard.

(For other cases, see Master and Servant, Dec. Dig. $ 417 [3].)

Appeal from State Industrial Commission.

Claim for compensation under the Workmen's Compensation Law by Mrs. Emily K. Waite, for death of Harold C. Waite, the employee, opposed by the E. W. Bliss Company, the employer, and the United States Fidelity & Guaranty Company, insurance carrier. From an award of the State Industrial Commission, the employer and insurance carrier appeal. Hearing of appeal suspended.

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

William Dike Reed, of New York City (William Warren Dimmick, of New York City, of counsel), for appellants.

Merton, E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

Robert W. Bonynge, of New York City, for State Industrial Commission.

LYON, J. The appeal is not properly before this court for hearing. The commission made the award, of date July 8, 1918,, to Harold C. * Decision rendered, January 8, 1919. 173 N. Y. Supp. 686.

Waite for 41 weeks, covering the period from August 28, 1916, to June 11, 1917, evidently erroneously stated in the findings as July 11, 1917, and continued the claim for further hearing; the commissioner stating:

"It appearing that Harold C. Waite, claimant herein, died on or about August 9, 1917, said award is directed to be paid to the estate of Harold C. Waite, deceased."

The law and practice of this court requires that, following the death of the plaintiff, a substitution must be had of representative of the estate before an appeal can be heard. It was recently held by the Court of Appeals, in the Matter of the Claim of O'Esau for compensation against E. W. Bliss Co., employer, and Ætna Life Ins. Co., insurance carrier, appellants, 121 N. E. 362, that by section 23 of the Workmen's Compensation Law (Consol. Laws, c. 67), appeals to the Appellate Division, and to the Court of Appeals, from determinations made by the commission, save as in said section excepted, are subject to the law and practice applicable to appeals 'in civil actions. Furthermore, there is nothing in the case showing that Emily K. Waite was the widow. According to the record, Harold C. Waite was not married.

The hearing of the appeal must be suspended in this court, awaiting such actions as the parties may see fit to take. All concur.

SUPREME COURT OF NEW YORK.
APPELLATE DIVISION, THIRD DEPARTMENT.

IN RE WHALEN.*

WHALEN

V.

STANWOOD TOWING CO. ET AL.*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT --ACCIDENT ARISING IN COURSE OF EMPLOYMENT.

Where the captain of tugboat, after being discharged, returned to the boat, ate dinner, and collected his effects, and later his body was found in the vicinity of the pier at which the boat was tied up, evidence held insufficient to warrant an award against the employer; it not being shown that he met his death through an accident arising in the course of his employment.

(For other cases, see Master and Servant, Dec. Dig. § 405[4].) John M. Kellogg, P. J., dissenting.

Appeal from State Industrial Commission.

In the matter of the claim of Ellen Whalen for compensation under the Workmen's Compensation Act against the Stanwood Towing Company, employer, and the New Amsterdam Casualty Company, insurance carrier. From an award of the Industrial Commission, the employer and insurance carrier appeal. Reversed, and claim dismissed.

*Decision rendered, January 8, 1919. 173 N, Y. Supp, 856.