same employment or otherwise." Workmen's Compensation Law, § 15, subds. 3 and 4. The latter factor in the computation has been treated by the commission as zero during the weeks of unemployment. On that basis there has been award for disability between May 8 and June 1, and between August 2 and October 4, the periods of idleness.

[2] For the first of these periods there is evidence that sustains the finding. The claimant's search for work was fruitless. The inference is permissible_that it was his own physical defects which made the quest a vain one. Failure to find work is, indeed, no ground for compensation if the failure has its origin in general business conditions, the slackness of the demand for labor. Cardiff Corporation v. Hall, 1911, 1 K. B. 1009, 1018; Durney's Case, 222 Mass. 461, 111 N. E. 166. Failure to find work stands upon a different basis when the labor is unmarketable because of the conditions of the laborer. Cardiff v. Hall, spura, pages 1018, 1020; Clark v. Gas Light & Coke Co., 7 W. C. C. 119; Sullivan's Case, 218 Mass. 141, 105 N. E. 463, L. R. A. 1916A, 378. There is some basis for a finding that this was the claimant's plight. He was unskilled or common laborer. He coupled his request for employment with notice that the labor must be light. The applicant imposing such conditions is quickly put aside for more versatile competitors. Business has little patience with the suitor for ease and favor. He is the "odd lot" man (Cardiff Corp. v. Hall, supra, at page 1021; James v. Morney-Carney & Co., 1913, 109 L. T. 377), the "nondescript in the labor market" (Cardiff Corp. v. Hall, supra, at page 1024). Work, if he gets it, is likely to be casual and intermittent. The general conditions of business in the spring of 1919 were within the knowledge of the commission. Slackness of trade at that time did not embarrass the efficient laborer. Rebuff, if suffered, might reasonably be ascribed to the narrow opportunities that await the sick and halt. In such circumstances, disability, followed by search for work and failure, will justify the inference of diminished earning power. Clark v. Gas Light & Coke Co., supra; Cardiff Corp. v. Hall, supra; Sullivan's Case, supra.

[3] The second term of idleness (between August and October) brings up another question. Work was offered and refused. Earning capacity was then equal, if the claimant was willing to exert it, to capacity before the injury. We must hold him to the use of the powers which he had. Cardiff Corp. v. Hall, supra, p. 1019; Proctor & Sons v. Robinson, 1911, 1 K. B. 1004; Lacione's Case, 227 Mass. 271, 116, N. E. 894. Cases such as this where the award is to be measured by the difference between wages and capacity are, of course, not to be confused with those where the act prescribes a fixed and certain limit, irrespective of the tendency of the individual to rise above or fall below it. Workmen's Compensation Law. § 15, subds. 1, 2, 3. That this claimant did refuse without excuse to use the powers which were his, is a conclusion not to be avoided upon the record now before us. The refusal is not explained. The offer is not denied. We find no sufficient denial in the vague testimony of the claimant that he looked for work without success. The context shows that he was speaking of his efforts following discharge from service, and not of offers made before. If this might otherwise be doubtful, his silence, on resuming the stand, after hearing the employers testimony, would make his meaning certain. "All evidence,' said Lord Mansfield in Blatch v. Archer, Cowper, 63, 65, to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted.'" Kirby v. Tallmadge, 160 U. S. 379, 383, 16 Sup. Ct. 349, 40 L. Ed. 463. A finding adverse to the making and rejection of this offer of employment rests on words too vague and slender to be characterized as evidence. Matter of Case, 214 N. Y. 199, 108 N. E. 408. A different situation would be here if the claimant put

the work aside in the belief that it was beyond his powers. Nothing in the record suggests that explanation of his conduct. Apparently the work was lighter than the work he had been doing. In the absence of denial or explanation, we find no basis in the record for this branch of the award. The statute was not adopted that sloth might be a source of profit.

The order of the Appellate Division and the award of the Industrial Commission should be reversed, and a rehearing ordered, with costs to abide the event.

Hiscock, C. J., and Pound, McLaughlin, Crane, and Andrews, JJ..

concur.

Order reversed, etc.

FELDSTEIN V. BUICK MOTOR CO.

(New York Supreme Court, Appellate Term, First Department. April 11, 1921.)

187 New York Supplement 417

LAW OBLI

1. MASTER AND SERVANT-COMPENSATION GATES EMPLOYER TO FURNISH MEDICAL SERVICES. Under Workmen's Compensation Law, § 13, the duty to furnish necessary medical services to an injured employee falls primarily on the employer, and if he refuses the employee's request for such aid, or neglects to furnish proper service, the employee may select his own physician.

(For other cases, see Master and Servant, Dec. Dig. § 3932.) 2. MASTER AND SERVANT-COMPENSATION COMMISSION WITHOUT JURISDICTION TO ENFORCE PHYSICIAN'S CLAIM AGAİNST EMPLOYER FURNISHING TREATMENT. In view of Workmen's Compensation Law, §§ 13, 24, where a physician's claim for services rendered employees is based solely on an agreement with the employer, and is not a part of the injured employee's claim, for compensation, the Compensation Commission is without legal authority to fix his fee and enforce it, and the physician still retains his. right to prosecute his claim against the employer in a common-law action. (For other cases, see Master and Servant, Dec. Dig. § 397.)

Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Zama Feldstein against the Buick Motor Company. From a judgment for plaintiff, and an order denying defendant's motion for new trial, defendant appeals. Affirmed.

Argued January term, 1921, before Guy, Wagner, and McCook, JJ.

Alfred W. Andrews of New York City (Philip J. O'Brien, of New York City, and James M. Baird, of counsel), for appellant.

Cohen Bros., of New York City (Lawrence B. Cohen, of New York City, and Jacob Shientag, of Brooklyn, of counsel), for respond

ent.

WAGNER, J. This action was brought by plaintiff, a physician, to recover the reasonable value of professional services he rendered at the

request of defendant's superintendent to several of defendant's employees, who were injured in the course of their employment. The defendant resisted the claim, contending that under the Workmen's Compensation Law (Consol. Laws, c. 67) the plaintiff's exclusive remedy to recover the money value of his services was by application to the Industrial Commission, upon whom the law imposed the duty of fixing plaintiff's fees; hence the Municipal Court had no jurisdiction over an action of this character.

There was no dispute as to the rendition of the services, nor as to their reasonable value. Unconvinced by defendant's legal contention, the court below rendered judgment for plaintiff, from which judgment, and an order denying a motion for a new trial, this appeal is taken.

[1] The Compensation Law requires that an injured employee be given necessary medical services, when injured in the course of his employment. That duty primarily falls upon the employer. If he refuses the employee's request for such aid, or neglects to furnish the proper service, the employee may select his own physician. Section 13, Workmen's Compensation Law. Manifestly, therefore, the defendant here was legally obligated to furnish the services to its injured employees for the value of which plaintiff seeks to recover in the instant

case.

[2] May he enforce his claim by an action at common law, or is he by statute law restricted to an application before the Industrial Commission for the fixation of his fees? In support of his contention that plaintiff can enforce his claim only by appliction to the Industrial Commission, the defendant cites us the case of Semmen v. Butterick Publishing Co., 101 Misc. Rep. 285, 166 N. Y. Supp. 993. In that case an employee sued the employer for a sum of money claimed to have been expended for medical services required because of injuries sustained while employed in defendant's factory. The court held that the employee, where the employer refused or neglected to provide medical aid, could not begin an independent action at common law to recover his expenditures; that the compensation law did not extend the common-law rights of the employee, but that "it operates to the exclusion of the commonlaw rights and liability of master and servant in so far as it extends to accidental injuries sustained by the employee while engaged in any of various sorts of hazardous employments * * * mentioned in the statute."

The compensation given by the act cannot be supplemented by compensation afforded by the courts of common-law jurisdiction. And since expense incurred by the injured employee in his efforts to regain his health is embraced or included in his award no separate recovery by action can be had. Section 24 provides that claims for such services shall not been forced, unless aproved by the Commission, and section 26 provides for the enforcement of such claim by the Commission. "Reading these provisions together," the court said, it seems that the Legislature intended to invest the Commission with full power over such claims and with full power to enforce them."

The facts and the law involved in the Semmen Case have no appli cation to the case at bar. Here the employer contracted for plaintiff's services, not the employee. Here the physician is enoeavoring to enforce his claim against the employer. In the Semmen Case the employee attempted in an action at common law to enforce her claim for medical services against her employer, who had refused to provide any. My investigation has failed to disclose any case in which the precise question here presented has been passed upon, nor has counsel cited us any apposite authorities.

It is a "tiresome truism" to assert that the Workmen's Compensation Law was passed, as its name indicates, for the benefit of workingmen. The common law of employer's liability, together with its statutory

modifications, the Legislature deemed inapplicable to modern industrial conditions. The common experience of the workman, who had been injured in his employment, constituted reprimand and condemnation of the insufficient remedies of the common law. By these primitive rules of presumption he was more often presumed out of court than a proper regard for humanity should tolerate.

Such a system of jurisprudence was so adverse to human sentiment and so fundamentally wrong that the Legislature resolved to correct it by the enactment of the "Compensation Act." Thereafter a workman was to receive damages for his injuries, whether the employer or employee was at fault. The amount to be paid was dependent only upon the extent and duration of the disability and the earning power of the workman. Thus the uncertainty and expense of litigation was eliminated. The Legislature was concerned only with the injured employee's welfare and compensation. It provided a new and exclusive method of assessing and collecting his damages including his medical expenses. It was not concerned with claims against employers by other than injured workmen, even though the services for the payment of which claim is made were rendered because of duties imposed upon him by the Workmen's Compensation Law.

Reading section 13 in the light of the legislative intent and purpose, it seems clear that the sentence, "All fees and other charges for such treatment and services shall be subject to regulation by the Commission as provided in section 24 of this chapter, and shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living," has reference only to fees and charges incurred by the workingman for medical treatment, where the employer refuses or neglects to provide such treatment.

This is the more clearly indicated by a reading of section 24. That section provides for the approval of the value of the services by the Commission and the inclusion of the charge as part of the Workman's award, showing convincingly that it is the charge incurred by the employee, and not the employer that is subject to regulation by the commission. No attempt to regulate private arrangements entered into between the employer and the physician he might select is either expressly made or by implication to be spelled out of its provisions, and wisely so, for in no way could that be a matter of public concern. Nor is there any plan or schedule set forth for enforcement thereof. Recourse to a court of law therefore follows as the sole remedy., in the absence of a proper, expressed, and comprehensive provision for enforcement under the act.

It is clear, therefore, that where the physician's claim is based solely on an agreement with the employer, and not a part of the injured workman's claim for compensation, the Compensation Commission is without legal authority to fix the fee and enforce it, and the physician still retains his right to prosecute his claim in a common-law action. The court below, therefore, had jurisdiction to determine the claim, and the judgment is accordingly affirmed. with $25 costs.

Guy, J., concurs.

McCook, J., concuring in the result.

KABEL V. LANE ENGINEERING CO. ET AL.

(New York Supreme Court, Appellate Division, Third Department May 4, 1921.)

187 New York Supplement 833.

1. MASTER AND SERVANT-COMPENSATION INSURER, NOT APPEALING, CANNOT COMPLAIN OF AWARD.

Where claimants under the Workmen's Compensation Act recovered against third persons, and a portion of the judgment was credited on the claim against the employer. the insurance carrier, not having appealed from the determination of the Industrial Commission, cannot, on appeal by claimants, raise the question that an additional amount should have been credited.

(For other cases, see Master and Servant. Dec. Dig. § 417 [3%].) 2. MASTER AND SERVANT - DEPENDENTS WITHIN COMPENSATION LAW CHARGEABLE WITH JUDGMENT FOR DAMAGES AGAINST WRONGDOER.

Where the widow and infant son of deceased employee, pursuant to Workmen's Compensation Law, § 29. elected to sue a third person, and judgment of $4,500 was recovered, together with costs and interest, the principal amount of the judgment should at least be credited on the award to them, although their attorney received a percentage of the recovery.

(For other cases, see Master and Servant, Dec. Dig. § 389.)

Woodward and Van Kirk, JJ., dissenting..

Appeal from State Industrial Commission.

Claim by Rosanna Kabel. on behalf of herself and infant son. Henry J. Kabel, on account of the death of William A. Kabel, employee, for compensation under the Workmen's Compensation Law against the Lane Engineering Company and another, employers, and the United States Fidelity & Guaranty Company, insurance carrier. From the findings of fact and conclusions of law of the State Industrial Commission, claimants appeal. Affirmed.

Argued before John M. Kellogg, P. J., and Woodward, Cochrane, Kiley. and Van Kirk, JJ.

John F. Ryan, for claimants.

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

William Warren Dimmick, of New York City, for employers and insurance carrier.

KILEY, J. Claimant's intestate was so severely injured on June 27, 1917, that he died three days thereafter. The employers were contractors for heating and power plants. The employee gave the required notice of injury, and claimants filed the required notices of claim. After filing the foregoing notice, and on or about October 23, 1917, claimant filed with the State Industrial Commission, as provided in section 29 of the Workmen's Compensation Law (Consol. Laws. c. 67), notice of election to sue a third party, viz., John W. Cooper & Company, Inc., as being liable for such injury and death. She sued as administratrix,