Such enactments are upheld, although relating to or affecting incidentally matters which are, maritime in character. [3, 4] Legislation of this nature, essentially local and operating in personam, does not effect an unauthorizeed change or modification in the general martime law, nor does it contravene the provision of the federal Constitution (article 3, § 2) extending the judicial power of the United States "to all cases of admiralty and maritime jurisdiction," nor the acts of Congress saving to suitors the right of a common-law remedy. In fact, it has been expressly held that state legislation similar to our Code provision is a "general law of personal rights, not specially directed to commerce or navigation, but applying alike on sea and shore," and such a statute does not contravene or interfere with the "proper harmony and uniformity" of the maritime law in its international or interstate relations. The question has been considered in the following cases: The City of Norwalk (D. C.) 55 Fed. 98, 106, 108; Southern Pac. v. Jensen, 244 U. S. 205, 216, 37 Sup. Ct. 524, 61 L. Ed 1086, L. R. A. 1918C, 451 Ann Cas. 1917E, 900 (citing The City of Norwalk); The Hamilton, 207 U. S. 398, 403, 28 Sup. Ct. 133, 52 L. Ed. 264; The Lottawanna. 21 Wall. 558, 579, 580, 22 L. Ed. 654 It seems to me, therefore, that the question of the right of a litigant to elect between the benefits of the Workmen's Compensation Law of New York (Consol. Laws, c. 67), a suit in admiralty, or an action at commonlaw, discussed by counsel for the defendant and in the cases cited by him, is not germane to any question presented on this motion. The right to elect to proceed in admiralty is not involved, because the plaintiffs have not so attempted. The right to elect between the Compensation Law and an action at common-law is not presented, because the plaintiffs have neither a right nor a remedy enforceable at commonlaw. The action which they have attemped to bring is purely statutory, and the sole question in this respect is therefore whether they may elect between the Compensation Law and an action in the courts under the Code provisions. I think the question must be answered in the negative. Since, as already shown, a statute authorizing an action for negligence in causing the death, even though the deceased was engaged at the time in work of maritime character, does not offend against the federal Constitution or any act of Congress, nor contravene any essential feature of the harmony and uniformity sought to be preserved in the administration of the maritime law, it follows that the action so authorized by such a statute stands in the same category and is affected by the Workmen's Compensation Law equally and in like degree as any other action authorized by local statute or sanctioned by the common-law. as applied in this state. [5,6] The State Constitution (article 1, § 19) authorizes the Legislature to enact Workmen's Compensation Laws, and confers upon it in this respect plenary powers. The Legislature may provide that such compensation and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries," etc. Pursuant to such constitutional authorization, the legislature has provided in section 10 of the Compensation Law for liability in death cases, and in section 11 has enacted that such liability shall be exclusive, except that in case the employer fails to comply with the provision of section 50 an action may be brought in the courts at the élection of the injured party. It follows that, if the defendant has complied with the provisions of the Compensation Law, the benefits of that law are exclusive, and hence that the present action may not be maintained. Shanahan v. Engineering Co., 219 N. Y. 469, 114 N. E. 795. The question still remains whether the plaintiffs must affirmatively allege a failure by the defendant to secure the payment of compensation, as required by section 50 of the Compensation Law, and their consequent election to sue in the courts, or whether this is matter to be plead Vol. IV-Comp. 34. ed by way of defense. The following cases seem to hold that the burden of pleading in this respect is upon the plaintiff Nulle v. Hardman Co., 185 App. Div. 351, 173 N. Y. Supp. 236; Shinnick v. Clover Farms Co., 169 App. Div. 237, 154 N. Y. Supp. 423; Ruddy v. Morse Co.,-App. Div.—, 176 N. Y. Supp. 731. Notwithstanding these decisions it seems to me that the question is still arguable. In the Shanahan Case, supra, the complaint set forth a cause of action under Code Civ. Proc. § 1902, but did not allege the failure of the defendant to secure compensation as required by the Compensation Law. The answer set up as a separate defense the Compensation Law; that such law provided that the employer, upon securing the payment and compensation as therein provided should be relieved from all liability, etc., that the occupation in which plaintiff's intestate was employed at the time of the injuries was within the protection of the Compensation Law; and that the defendant had secured the payment of such compensation as required by that law. The plaintiff demurred to this defense and the question certified to the Court of Appeals was: "Should the demurrer to the second defense in the answer be sustained The qustion so certified was answered in the negative. " This seems to me to be a decision to the effect that pleading compliance by the defendant with the Compensation Law is a good defense to an action under section 1902 of the Code. Therefore how can it be said that pleading noncompliance with that law is an essential element of the cause of action? If the complaint in the Shanahan Case was defective for failure to allege noncompliance by the defendant with the Compensation Law, it seems to me that the Court of Appeals would have so indicated. It is difficult to conceive that the Court of Appeals decided, that compliance with the statute was a good defense to a complaint bad for fallure to allege noncompliance with the same statute. See, also, Schittner v. American Tobacco Co., 100 Misc. Rep. 261, 165 N. Y. Supp. 479. Besides, it has never been contended, so far as I am aware, that the Compensation Law either expressly or impliedly repeals section 1902 of the Code of Civil Procedure. That statute still remains in force and is applicable to all cases not included within the scope of the Compensation Law; and in the Shanahan Case the court states that, if the employer fails to comply with the statute, "he is subjected to such an action as the present one as a penalty"; and the court has already characterized that action as one brought under section 1902 of the Code. What relation, then, does section 11 of the Compensation Law bear to section 1902 of the Code? What effect does it have upon the Code provision? [7] Section 11 in effect takes out of the operation of section 1902 of the Code the right to enforce liability in certain cases embraced within the terms and conditions of the Compensation Law. It ingrafts a limitation upon the liability enforceable under that section. In this respect it may be contended, I think, with some plausibility that section 11 operates as, and performs the functions of, a proviso. It is a subsequent enactment, and it curtails the rights enforceable under a prior statute If this section may be considered as a proviso, then the plaintiffs mad out a prima facie case when they stated a cause of action under section 1902 of the Code. They were not bound to negative section 11 of the subsequent act. See Rowell v. Janvrin, 151 N. Y. 60, 67, 68, 45 N. E. 398. [8] I think this motion may be entertained notwithstanding that an answer containing denials has been interposed. See the following cases: Longenecker v. Longenecker, 140 N. Y. Supp. 403; Guggenheim v. Guggenheim, 95 Misc. Rep. 332, 159 N. Y. Supp. 333; Spielberg v. Canada S. S. Lines, 98 Misc. Rep. 304, 162 N. Y. Supp. 610; Schleissper v. Goldsticker, 135 App. Div. 435, 120 N Y. Supp. 333; Olsen v.. Mfg. Co. 143 App. Div. 142, 127 N. Y. Supp. 697; O'Rourke v Patterson, 157 App. Div. 284, 142 N. Y Supp. 195; Field v. Empire Case Goods Co., 179 App. Div. 253, 255, 166 N. Y. Supp. 509. It was held in Nilsen v. Am. Bridge Co., 221 N. Y. 12, 116 N. E. 383, that in a common-law action, where it does not appear from the complaint that plaintiff was engaged in an employment classed as hazardous in the Workmen's Compensation Law, the question was not presented whether the plaintiff, by reason of said law, is barred from the right to recover, and that, therefore, a demurrer to the complaint cannot be sustained upon the ground that the complaint failed to state facts constituting a cause of action, merely because the remedy provided in the Compensation Law is exclusive. By analogy this reasoning seems to be applicable to the present case. The defendant's motion for judgment on the pleading should, I think, upon these considerations be denied. Ten dollars costs of motion. The tips received by a Pullman car porter are understood by the porter and the company to be part of his "wages," and can be considered as such in determining the compensation to which he is entitled for injuries: (For other cases, see Master and Servant, Dec. Dig. § 385[1].) (For other definitions, see Words and Phrases, First and Second Series, Wages.) Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Law for compensation for the injuries of Perry O. Bryant, employee, opposed by the Pullman Company, employer and self-insurer. From an award in favor of the claimant by the State Industrial Commission, the employer appeals. Affirmed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane., and Henry T. Kellogg, JJ. Locke, Babcock, Spratt & Hollister, of Buffalo,Maurice C. Spratt, of Buffalo, of counsel), for appellant. Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent. JOHN M KELLOGS, P. J. The accident to the claimant occurred March 17,1918. He was a porter on the company's sleeping car. At the time of the accident, under the act of Congress and the proclamation of *Decision rendered, June 30, 1919. 177 N. Y. Supp. 488. the president, the cars of the company were operated under federal control. The proclamation of the President provided (U. S. Comp St. 1918, p. 275) that the Director General of railroads "may perform the duties imposed upon him, so long and to such extent as he shall determine, through the boards of directors, officers, and employees" of the companies. Act of Cong. March 21, 1918, c. 25, § 10, 40 Stat. 451 (U. S. Comp. St. 1918, § 311534j). contemplated a continuing liability of the companies, and actions against them are not inconsistent with the act or the proclamation of the President The express business was carried on by the appellant for the government, under the proclamation of the President, until August 17, 1918, when, by a general order, the Director General assumed the management of the business under managers appointed by him. [1] The appellant raised no question with the goverment as to the effect or validity of the act of Congress or the proclamation of the 'resident, but acquiesced in them and operated its cars as contemplated by the act. If, instead of so doing, it had contested the question with the government, a different situation might have arisen. But having operated its cars under the act, it cannot now raise the question that the government could not compel it to do so. That question is in the past. It did operate its cars, and the claimant was its employee in that service. It was carrying on the express business by and under the direction of the Director General. In effect the government was he lessee of the cars, tho company the lessor, and by the terms of the lease the business was carriod cn by it under government control. The question is not one of substance. If the lessee was carrying on its business through the lessor, and the latter is required to pay compensation ander this award, it has ample recourse against the les、ec, and undoubtedly any liability imposed upon it will be met in the adjustment of the rentals. We consider the question more one of technicality than of substance, and are prepared to hold that for the purposes of the protection of the claimant under the Workmen's Compensation Law (Consol. Laws, c. 67) the appellant was his employer and that the award may stand. [2] It is urged, however, that the award rested upon a wrong basis as to tips received by the porter, which were treated as a part of his wages, and an ingenious, but unsuccessful, attempt is made to distinguish this case from Sloat v. Rochester Taxicab Co., 177 App. Div. 57, 163 N. Y. Supp. 904. It is urged that in that case it was understood that the tips were to be a part of the compensation. The facts in this case overwhelmingly point to the same result. It is improbable that the company could employ a porter for $1 a day, if other compensation was not in contemplation. The company puts its patrons in the hands of underpaid porters, expecting that the patrons will not suffer the porter to remain underpaid, but will help the company pay for the services rendered by them. Such is the common understanding. The award should be affirmed. Award unanimously affirmed. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD DEPARTMENT. DRUMMOND ET AL. ISBELL-PORTER CO. ET AL.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT EVIDENCE. Persons claiming death benefits under the Workmen's Compensation Act are bound to bring themselves within the language of the act. (For other cases, see Master and Servant, Dec. Dig. § 403.) 2. MASTER AND.SERVANT-INJURIES TO SERVANT-WORKMEN'S COMPENSATION ACT-EVIDENCE. In a proceeding under the Workmen's Compensation Act by parents residing in a foreign country to recover for the death of their son, evidence held insufficient to show that he had contributed to their support for a period of one year prior to the date of the accident. (For other cases, see Master and Servant, Dec Dig. § 405[5].) John M. Kellogg, P, J., dissenting. Appeal from State Industrial Commission. In the matter of the claim for compensation under the Workmen's Compensation. Act by Charles Drummond, dependent father, and Margaret Drummond, dependent mother, of Arthur Drummond, deceased, against the Isbell-Porter Company, employer, and the Manufacturers' Liability Insurance Company, insurance carrier. From an award of the State Industrial Commission in favor of claimants, the employer and insurance carrier appeal. Award reversed, and claim dismissed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Lee & Brewster of Syracuse (P. Sidney Hand, of Syracuse, of counsel), for appellants. Charles D. Newton, Atty. Gen. (E. Ċ. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission. WOODWARD, J. The deceased, Arthur Drummond, was a bricklayer. He came to his death while taking measurements from the top of a furnace, where it is assumed he stepped upon some recently laid bricks on the edge of the furnace wall, which, falling out of place, cause i him to lose his balance and drop to the floor below, fracturing his skull and producing death. So far as the record shows, there was, in this accident, nothing on which an action of negligence could rest under the provisions of section 1902 of the Code of Civil Procedure, and the claimants here are the father and mother of the decedent, residing in England, and there are brothers and sisters living. We call attention to these matters simply to emphasize the fact that the claimants can have no legal rights outside of those which depend upon the provisions of the Workmen's Compen *Decision rendered, June 30, 1919. 177 N. Y. Supp. 525. |