They are referred to in this Bulletin under the abbreviation, S. D. R. The texts of the Appellate Division decisions are to be found in the Appellate Division Reports beginning with volume 165 and the texts of the Court of Appeals decisions in the New York Reports beginning with volume 215. The Miscellaneous Reports of New York, beginning with volume 90, give a few cases involving workmen's compensation. The Reports of the AttorneyGeneral, beginning with 1914, contain occasional compensation opinions. The monthly Bulletin of the State Industrial Commission, the first number of which appeared in October, 1915, presents compensation rulings, court decisions, comments of administrative officers and current compensation items. The Bureau of Statistics and Information of the Department of Labor has issued an annotated edition of the Workmen's Compensation Law.

The Court of Appeals of New York, having upheld the constitutionality of the present Workmen's Compensation Law in Jensen v. Southern Pacific Co., and Walker v. Clyde Steamship Co., these cases, together with Winfield v. N. Y. Central & II. R. R. R. Co., and White v. N. Y. Central & H. R. R. R. Co., relative to interstate and foreign commerce, have been argued before the Supreme Court of the United States. On November 13, 1916, the Supreme Court ordered a reargument on the cases involving the constitutionality of the New York compensation law, as well as on similar statutes of Iowa and Washington. The constitutionality of compensation laws generally will be determined by the decisions in these cases.*

The opinion in Jensen v. Southern Pacific Co., rendered on July 13, 1915, upheld the constitutionality of the Workmen's Compensation Law generally. It also held that the Federal Employers' Liability Act was not applicable to the case. An employee of defendant was killed while engaged in unloading a steamship engaged solely in interstate commerce, while it was docked at a pier in this state. The court held specifically that the work in which decedent was engaged was "longshore work" as classified in group 10 of section 2 of the Workmen's Compensation Law and did not fall within group 8, which excepts injuries received in the operation and repair of "vessels of other states or countries used in interstate or foreign commerce when operated or repaired by the company."

The Commission had previously made an award which was affirmed without opinion in the Appellate Division (167 App. Div. 945). The act was held to be not violative of the due process clause or of the commerce clause of the Federal constitution. The Federal Employers' Liability Act was held not to apply since, so far as this case was concerned, the defendant was a carrier by water while the Federal Act applies only to transportation by railroad. It was likewise held that the employee is not deprived of a remedy for injuries occasioned by the negligence of his employer, since the compensation act is a valid substitute for the former common law right of action.

* On March 7, 1917, the Supreme Court upheld the compensation laws of these three states.

The enactment in 1913 of section 19 of article 1 of the state constitution removed the objections to a compensation statute so far as the state constitution is concerned. The present statute was distinguished by the Court of Appeals from the compensation law enacted in 1910, which was held to be violative of the due process clause of the Federal constitution as well as of the State constitution, in the case of Ives v. South Buffalo Ry. Co. (215 N. Y. 271),* on the ground that the 1914 statute provides a method, through the state insurance fund or alternative plans, of distributing the burden of compensation equitably over the industries affected, whereas the 1910 statute subjected the individual employer to a suit for damages. In view, both of these differences and also of the decision of the United States Supreme Court in the case of Noble State Bank v. Haskell (219 U. S. 104), the Court of Appeals held that the conflict with the Federal constitution no longer exists.

MILLER, J.: The claimant's husband was killed on August 15th, 1914, while employed in unloading the steamship El Oriente which was berthed alongside a pier in the Hudson river. When the accident occurred he was moving an electric truck upon a gangway connecting the vessel with the pier. The appellant, a corporation of the state of Kentucky, is a common carrier by railroad. It also owned and operated said steamship, which plied between New York and Galveston, Texas. It does not appear that the steamship was in any way operated in connection with a line of railroad, and in its report of the accident the appellant stated its business to be "transportation by steamships engaged solely in interstate commerce." We are required on this appeal, first, to construe the Workmen's Compensation Law (Chap. 67 of the Consolidated Laws; L. 1914, ch. 41) in so far as it relates to this case, and, second, to determine its constitutional validity. The scheme of the statute is essentially and fundamentally one by the creation of a state fund to insure the payment of a prescribed compensation based on earnings for disability or death from accidental injuries sustained by employees engaged in certain enumerated hazardous employments. The state fund is created from premiums paid by employers based on the payroll, the number of employees and the hazards of the employment. The employer has the option of insuring with any stock corporation or mutual association authorized to transact such business, or of furnishing satisfactory proof to the commission of his own financial ability to pay. If he does neither he is liable to a penalty equal to the pro rata premium payable to the state fund during the period of his non-compliance and is subject to a suit for damages by the injured employee, or his legal representative in case of death, in which he is deprived of the defenses of contributory negligence, assumed

*Full text of the decision appeared in the Quarterly Bulletin of the Department of Labor, No. 46, March, 1911, pp. 59–80.

risk and negligence of a fellow-servant. By insuring in the state fund, or by himself or his insurance carrier paying the prescribed compensation, the employer is relieved from further liability for personal injuries or death sustained by employees. Compensation is to be made without regard to fault as a cause of the injury, except where it is occasioned by the willful intention of the injured employee to bring about the injury or death of himself or another or results solely from his intoxication while on duty. Compensation is not based on the rule of damages applied in negligence suits but in addition to providing for medical, surgical or other attendance or treatment and funeral expenses it is based solely on loss of earning power. Thus the risk of accidental injuries occurring with or without fault on the part either of employee or employer is shared by both and the burden of making compensation is distributed over all the enumerated hazardous employments in proportion to the risks involved. So much for the general outline of the scheme against whose justice or economic soundness nothing, that occurs to me, can be said.

The particular provisions requiring construction are the following:

"Section 2. Application, Compensation provided for in this chapter shall be payable for injuries sustained or death incurred by employees engaged in the following hazardous employments:

"Group 8. The operation, within or without the state, including repair, of vessels other than vessels of other states or countries used in interstate or foreign commerce, when operated or repaired by the company.

"Group 10. Longshore work, including the loading or unloading of cargoes or parts of cargoes of grain, coal, ore, freight, general merchandise, lumber or other products or materials, or moving or handling the same on any dock, platform or place, or in any warehouse or other place of storage."

"Section 114. Interstate Commerce. The provisions of this chapter shall apply to employers and employees engaged in intrastate, and also in interstate or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the congress of the United States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce, except that such employer and his employees working only in this state may, subject to the approval and in the manner provided by the commission and so far as not forbidden by any act of congress, accept and become bound by the provisions of this chapter in like manner and with the same effect in all respects as provided herein for other employers and their employees."

It is claimed that loading and unloading are included in "operation" and that, therefore, the case falls within group 8, which excepts vessels of other states or countries used in interstate or foreign commerce, but the specific enumeration of longshore work in group 10 excludes such work from the other group.

It is next claimed that the statute was not intended to apply to employment in interstate or foreign commerce and that in case of doubt that construction should be adopted, for otherwise it would offend against the commerce clause of the Federal Constitution by imposing a burden upon such commerce. The latter claim will be noticed first. The statute does not purport directly to regulate or impose a burden upon commerce, but merely undertakes to regulate the relations between employers and employees in this state. Such regulation may, and no doubt does, indirectly affect commerce, but to the extent that it may affect interstate or foreign commerce it is plainly within the jurisdiction of the state, until congress by entering the field excludes state action. (Sherlock v. Alling, 93 U. S. 99; Morgan's Steamship Co. v. Louisiana, 118 U. S. 455; Reid v. Colorado, 187 U. S. 137; Simpson v. Shepard, 230 U. S. 352; Erie R. R. Co. v. Williams, 233 U. S. 685.)