fendant. On the contrary, Kline himself, at the time of his employment, represented to the company's superintendent that he was then over 16 years old.

This suit is based upon the common-law liability of an employer to compensate an employee for injuries received in his employment by reason of the negligence of the master. The trial resulted in a verdict for the plaintiff.

[1] The first ground upon which we are asked to make this rule absolute is that since the enactment of chapter 95 of the Laws of 1911, commonly known as the Workmen's Compensation Act, that statute provides the only means by which an injured employee can recover compensation from his employer for injuries received in the course of, and arising out of his employment, and abrogates the common-law liability of the master for such injuries. But this statutory provision with relation to the recovery of compensation only applies where the contract of hiring is a valid one, and not where such a contract is prohibited by the statute law of the state; and this is the situation now presented. By an amendment passed in 1914 (P. L. p. 525) to the Factory Act of 1904, § 7 (P. L. p. 152), it is declared (section 4) that—

"No minor under the age of sixteen shall be employed, permitted or suffered to work at any of the following oceupations or in any of the following positions: adjusting any belt to any machinery; * operating or assisting in operating any * * laundering machinery,"

etc.

*

In the case of Hetzel, Jr., v. Wasson Piston Ring Co., 89 N. J. Law, p. 201, 98 Atl. 306, L R. A. 1917D, 75, it was declared by the Court of Errors and Appeals that, where an infant was put to work by his employer in direct contravention of the provisions of the Factory Act, the common-law liability of the employer to compensate his employee for injuries caused by the negligence of the former was not affected by the provisions of the Workmen's Compenation Act.

[2] But it is argued that the doctrine of the Hetzel Case has no application where the employer is induced to hire the employee by reason of a false representation made by the latter as to his age, the representation being that he is not within the age limit specified in the statute. The argument rests upon the theory that, the false representation having been the inducing cause of the employment, the infant employee is estopped from taking advantage of the statute; or, stated in another way, will not be permitted to deny the truthfulness of the state-> ment made with relation to his age.

It is enough to say, disposing of this contention, that since the argument of this case the court of Errors and Appeals in Feir v. Weil, 106 Atl. 402, in an opinion promulgated in March of this year, expressly declared that the doctrine of estoppel in pais has no application where the employment of the infant is in violation of the provisions of the Factory Act. In that case, as in the present one, the employe falsely represented his age, and the master hired him believing the truth of the representation.

[3] Another ground upon which we are asked to set aside the present verdict is that the injury which befell the plaintiff was an ordinary risk assumed by him in the normal operation of the machine; but this contention is unsound. As was pointed out in the Hetzel Case, the primary purpose of the provision of the Factory Act, which has already been cited, is to protect all children who are too young to appreciate the dangers arising out of work in places or upon machines such as those described by the Legislature; and it cannot be said, in view of this legislative purpose, that a child who is too young to appreciate the dangers arising out of his work, and incident thereto, assumes the risk of such dangers; No risks are assumed except those which are or ought to be obvious to the party inccurring them. As was said in Lenahan v. Pitts

ton Coal Mining Co., 218 Pa. 311, 67 Atl. 642, 12 L. R. A. (N. S.) 461, 120 Am. St. Rep. 88, when the Legislature has distinctly established an age limit under which children, shall not be employed, it, in effect, has declared that a child under that age limit does not have the mature judgment, experience and discretion necessary to engage safely in work prohibited by the statute; and, consequently, a boy employed in violation of the legislative mandate is not chargeable with contributory negligence, or with having assumed the risks arising out of that employment.

Lastly, it is contended that the verdict is excessive. It is enough' to say, in disposing of this phase of the case, that the evidence on this point does not justify us in saying that the award of damages is clearly greater than the compensation which the plaintiff is entitled to recover for the injuries received.

The rule to show cause will be discharged.

COURT OF APPEALS OF NEW YORK.

PLASS
บ.

CENTRAL NEW ENGLAND RY. CO.*

On Reargument.

2. MASTER AND SERVANT-INJURIES TO SERVANT—WORKMEN'S COMPENSATION ACT-INTERSTATE COMMERCEREVIEW OF FINDINGS OF FACT.

In a proceeding under the Workmen's Compensation Act for the death of a section hand from contact with poison ivy while cutting weeds on the right of way, where there is some evidence to sustain a finding of the State Industrial Commission that deceased was not engaged in interstate commerce, on the theory that the weeds could stall trains, but that the weeds were cut solely to comply with railroad-Law, § 82, it will not be disturbed.

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

Appeal from Supreme Court, Appellate Division, Third Department. In the matter of the claim of Jane Plass under the Workmen's Compensation Act against the Central New England Railway Company for the death of Peter Plass, an employee. An award of the State Industrial Commission was affirmed by the Appellate Division (172 N. Y. Supp. 614), and the employer appeals. Order affirmed.

An order of the Appellate Division of the Supreme Court in the Third Judicial Department (172 N. Y. Supp. 614), entered November 26, 1918, affirmed an award of the State Industrial Commission made under the Workmen's Compensation Law (Consol. Laws, c. 67). Claim

*Decision rendered, March 11, 1919. On Reargument, June 6, 1919. 123 N. E. Rep. 852.

ant's husband was employed as a section hand on defendant's railroad. While mowing grass and weeds along the right of way he came in contact with poison ivy, resulting in blood poisoning and acute congestica of the lungs, from which he died. The only question was whether he was engaged in interstate commerce at the time of the accident. The State Industrial Commission held that he was not. It appeared that the road in question was a short line, consisting of about 23 miles of singletrack road running from Rhinecliff, on the New York Central Railroad, to Silvernails, and from Silvernails to Boston Corners, 12 miles further, where there is a junction point on the Central New England. While some freight was shipped out of the state, the witness could not state of any train as a whole going out of the state during the six months prior to the accident. See, also, 172 App. Div. 916, 156 N. Y. Supp. 1141.

Edward R. Brumley and John M. Gibbons, both of New Yorb City, for appellant.

Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent.

PER CURIAM. Order affirmed, with cost.

Hiscock, C. J., and Chase, Collin, Cuddeback, Hogan, McLaughlin, and Crane, JJ., concur.

PER CURIAM. Motion for reargument granted. See 226 N. Y.-, 123 N. E. 852.

On Reargument.

CRANE, J. When this case was here before, we sent it back to the commission to determine whether or not Plass, the deceased, was engaged in interstate commerce. 221 N. Y. 472, 117 N. E. 952. This question of fact had not been determined. Upon a rehearing it was found by the State Industrial Commission that he was not engaged in interstate commerce at the time he received the injury resulting in his death.

The award to the widow was affirmed by the Appellate Division and by this court. A reargument has been had, upon the assertion that the decision of New York Central Railroad Co. v. Porter, 249 U. S.—, 39 Sap. Ct. 188, 63 L. Ed. (decided March 3, 1919), requires us to reverse our former decision.

--

[1] The powers of this court are limited by the Constitution of the state to a review of questions of law, except where the judgment is of death. No unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to support a finding of fact or a verdict not directed by the court shall be reviewed by the Court of Appeals. Const. art. 6, § 9.

As the Appellate Division decision was not unanimous in affirming this award, we are permitted to review its detemination to the extent only of ascertaining whether there be any evidence or reasonable inferences deduced from the testimony upon which to base it.

[2] Plass was engaged on the 8th day of August, 1914, as a section laborer in mowing grass upon the right of way of the Central New England Railway in the town of Red Hook, Dutchess county, N. Y. He contracted ivy poisoning, resulting in his death August 29, 1914.

The road was a short line of about 35 miles of single track, running from Rhinecliff, on the New York Central, to Boston Corners, where there is a connection with Central New England Railroad. At times cars used for interstate shipment passed over this branch.

Section 82 of the Railroad law (Consol. Laws, c. 49) reads as follows:

"Every railroad corporation doing business within this state, shall cause all Canada thistles, white and yellow daisies and other noxious weeds growing on any lands owned or occupied by it, to be cut down twice in each and every year, once between the fifteenth day of June and the twenty-fifth day of June, and once between the fifteenth day of August and the twenty-fifth day of August. If any such corporation shall neglect to cause the same to be so cut down, any person may cut the same, between the twenty-fifth day of June and the fifth day of July inclusive, and between the twenty-fifth day of August and the fifth day of September inclusive in each year, at the expense of the corporation on whose lands the same shall be so cut, at the rate of three dlolars per day for the time occupied in cutting."

In compliance with this law the railroad once a year, perhaps twice, cut the weeds upon its right of way.

It was while doing this work that Plass was poisoned. For five feet each side of the tracks the roadbed was kept clean of the weeds by shovels, so that it was between the fence alongside the right of way and this five feet that Plass was working.

Cuneen, the assistant superintendent said:

"The nature and purpose of the work is to cut the weeds and grass along the right of way in order to prevent fires to bridges and trestles and spreading to adjacent property. **To prevent the grass and weeds getting on the rails and stalling the trains."

There was no bridge or trestle within a mile of this place; in fact, there is no evidence to show that there is any bridge or trestle on the 35 miles of road, if so, what it is made of. Crilley, "the Rhinecliff branch" supervisor, testified that Plass "was mowing the right of way, cutting grass and bushes." It is fair to assume that the right of way referred to was the space from the rail to the fence. It is not likely he would mow between the rails.

The triers of fact were not obliged to believe that weeds growing here could or would stall trains. These witnesses for the railroad company, in view of all the circumstances, could reasonably be charged with some exaggeration. Whether or not the weeds on the right of way were cut solely to comply with the Railroad Law and prevent fire to adjoining property or to protect bridges and trains was a question of fact for the Industrial Commission, and we think there was some evidence or at least reasonable inference to be drawn from the evidence to sustain its conclusion.

If this be so, we cannot pass upon weight of evidence and say whether, in our opinion, this question of fact were rightly decided In order to present the question we have taken the evidence most favorable to the respondent, which the commission might have believed.

The order appealed from should be affirmed, without costs.

Hiscock, C. J., and Cuddeback, Cardozo, Pound, and Andrews, J. J., concur. Collins, J., dissents on authority of N. Y. C. & H. R. R. R, Co. v. Porter, 249 U. S.-, 39 Sup. Ct. 188, 63 L. Ed.—, decided March 3, 1919.

Order affirmed, etc.

SUPREME COURT OF NEW YORK.

SPECIAL TERM, KINGS COUNTY.

BASSO ET AL.

ບ.

JOHN CLARK & SON, INC.*

5. MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW-EXCLUSIVE REMEDIES-ACTIONS FOR WRONGFUL

DEATH.

It was within the power of the Legislature under Const. art. 1, § 19, to provide in Workmen's Compensation Law, § 11, that liability in death cases shall be exclusive, except in certain cases.

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

6. MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW-ACTIONS FOR WRONGFUL DEATH-ELECTION OF REMEDIES.

Where defendant in an action for negligently causing death has complied with the Workmen's Compensation Law, the benefits of such law are exclusive, and an administrator may not bring an action under Code Civ. Proc. 1902.

(For other cases, see Master and Servant, Dec. Dig. § 351.)

7. MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW-ACTION FOR WRONGFUL DEATH-PLEADING NEGATIVING DEFENSES.

Administrators, suing for damages for negligently causing the death of his intestate under Code Civ. Proc. § 1902, made out a prima facie case, when they stated a cause of action under such section, and were not bound to negative Workmen's Compensation Law, § 11, making remedies under such law exclusive; such section operating as a proviso (For other cases, see Master and Servant, Dec. Dig. § 401.)

Action by Josephine Basso and another, as administrators of the estate of Salvatore Basso, deceased, against John T. Clark & Son, Incorporated, to recover for wrongful death of intestate. On defendant's motion for judgment on the pleadings. Motion denied

Russell & McGoldrick, for plaintiffs.

Nadal, Jones & Mowton, of New York City, for defendant.

BENEDICT, J. [1.2] Administrators sue defendant under section 1902 of the Code of Civil Procedure for damages for negligently causing the death of Salvatore Basso, their intestate. At common law an action for negligently causing death abated upon the death of the person injured. Neither the right to bring such an action as the present nor the remedy afforded by our Code provision existed at common law. The present action is purely statutory. McKay v. Ry. Co., 208 N. Y. 359, 101 N. E., 885. Statutes conferring the right to maintain actions for damages in death cases are within the legitimate scope of state legislation.

*Decision rendered, July, 1919. 177 N. Y. Supp. 484.