claim comes within the provisions of this chapter; " but, this does not mean, I think, that the Commission may indulge the presumption that the accident happened. What the section undoubtedly means is that when an accident has been established, the presumption, in the absence of substantial evidence to the contrary, arises that a claim growing out of the accident falls within the statute. In my opinion the Commission must be satisfied by evidence, either direct or circumstantial, that the accident happened, before the presumption established by the statutes can arise. Hyland v. Winant, S. D. R., vol. 6, p. 304, September 23, 1915.

I. Malingering. A carpenter fell, injuring his back and sides. When he had received compensation at the rate of fifteen dollars a week for nineteen weeks, a difference of opinion arose between his physicians and the Commission's physicians as to the completeness of his recovery. An eminent specialist, chosen as umpire, charged that the carpenter was malingering. Upon this and other testimony, the Commission denied further award, Commissioner Lyon remarking:

It is sometimes said that an injured workman who has a large family would be very loath to continue on compensation at two-thirds of his earning capacity if he were able to work, because the necessities of the case would almost compel him to return to work if possible in order to receive a higher return in money for the purpose of supplying his family. While the argument may be of force in some cases, it is to be noted that in the present case the claimant is an unmarried man and the compensation of fifteen dollars per week seems to be sufficient to support him in comparative ease without the necessity of any exertion whatever. Glidder v. Haliver, S. D. R., vol. 6, p. 366, December 14, 1915.

APPEALS

(Workmen's Compensation Law, § 23)

A. Courts to which taken.-Appeals from the State Industrial Commission are all taken to the Third Department of the Supreme Court, Appellate Division, sitting at Albany.* The Supreme Court, in New York, is an intermediate court. Further appeal lies from this Appellate Division to the Court of Appeals, the highest court of the State.†

B. Appeal by state fund insurers.-L. 1916, ch. 622, eliminated from Workmen's Compensation Law, § 23, a clause which prevented certification of questions of law to the Appellate Division by the Commission where the claim was against the State Fund. By decision of the Appellate Division, employers who insure with the State, unlike employers who insure with private companies and employers who are self-insurers, have no right of appeal from the State Industrial Commission. This denial rests on the theory that Section 53 of the Workmen's Compensation Law shifts all liability of such employers to the State. Their injured employees must look "only to the state fund and not to the employer." The decision is as follows:

SMITH, P. J.: The employer was insured in the State insurance fund. The first point raised is that it has no right to appeal. By section 53 of the Compensation Law it is provided: "An employer securing the payment of compensation by contributing premiums to the State fund shall thereby become relieved from all liability for personal injuries or death sustained by his employees, and the persons entitled to compensation under this chapter shall have recourse therefor only to the State fund and not to the employer. An employer shall not otherwise be relieved from the liability for compensation prescribed by this chapter except by the payment thereof by himself or his insurance carrier." By section 23 of the act it is provided that an award or decision shall be final and conclusive “as against the State fund, or between the parties, unless within thirty days after a copy of such award or decision has been sent to the parties, an appeal be taken to the Appellate Division of the Supreme Court of the Third Department. The Commission may also, in its discretion, where the claim for compensation was not made

In 1916, the five justices of the Appellate Division, Third Department, are: John M. Kellogg, P. J., George F. Lyon, Wesley O. Howard, John Woodward and Aaron V. S. Cochrane.

In 1916, the ten judges of the Court of Appeals are: Willard Bartlett, C. J., William E. Werner, Frank H. Hiscock, Frederick Collin, William H. Cuddeback, John W. Hogan and Samuel Seabury (elective); Emory A. Chase, Benjamin N. Cardozo and Cuthbert W. Pound (appointive). Not more than seven judges may sit in the same case.

against the State fund, on the application of either party, certify to such Appellate Division of the Supreme Court, questions of law involved in its decision." At least as to the certified questions a distinction seems to be made between those who insure in the State fund and those who insure with other insurance carriers. That discretion is probably based upon section 53, above quoted, which gives absolute immunity to the employer after insurance in the State fund, while such immunity is not given after insurance with any other carrier. It is true that the employer has a remote interest even though insured in the State fund, to the end that the risk which he claims not to be within the act may be so decided as affecting any subsequent premiums which he must pay. That interest, however, is too remote an interest to authorize his appeal in a matter where he is not otherwise aggrieved.

Further, the history of this legislation furnishes important light upon its proper interpretation. In the regular session of 1913 two compensation acts were before the Legislature. One was the Murtaugh-Jackson Act, which provided for a system of State insurance, and all employers were required to contribute thereto. This was the only method established for giving security for the payment of compensation. In that act it was provided that the decisions of the Commission were final, except where a claim for compensation was rejected. In the Foley-Walker bill security for compensation was given by providing carriers. There was no system of State insurance, and an appeal was allowed to any party interested. The act as it was passed seems to have been a compromise between these two proposed laws, giving the right of appeal where the insurance is with a private carrier as in the Foley-Walker bill- and withholding that right where the insurance is by the State insurance fund, as provided in the Murtaugh-Jackson bill.

I recommend, therefore, that the appeal be dismissed. All concurred, except WOODWARD, J., dissenting. Appeal dismissed. Crockett v. International Ry. Co., 170 App. Div. 122, November 10, 1915.

C. Facts not reviewable.—In restriction of the right of appeal, Section 20 of the Workmen's Compensation Law declares: "The decisions of the Commission shall be final as to all questions of fact, and, except as provided in section twenty-three, as to all questions of law." This limitation applies to employers generally, whether insured in the state fund or in private compenies, and also to employees. The right and duty of the courts to consider and to pass upon the character of the evidence sustaining an award by the State Industrial Commission has been considered at length under the title "Procedure and Evidence," above, pp. 364397. As stated by the Appellate Division in the Rhyner opinion, p. 375, such power of review is strictly limited to arbitrary, unfair and unreasonable decisions, the court adding that it is wholly improbable that the State Industrial Commission will make such decisions.

Dismissal of appeals on the ground that the courts have no power to review the State Industrial Commission's determinations of dependency and of average wages, when supported by any evidence, have occurred in Hendricks v. Seeman Bros., p. 190, and in Fairchild v. Pa. R. R. Co., p. 179. The Court of Appeals, in Dale v. Saunders Bros., p. 346, held that the question whose employee Dale was belonged solely to the Commission, as a matter of fact and not of law, the courts being denied jurisdiction.

D. Filing of exceptions, etc., unnecessary. In appeal cases, neither the Workmen's Compensation Law nor the rules of the Appellate Division require filing of exceptions or statement of the grounds of appeal in the notice. A decision of the Appellate Division to this effect has been supplemented by amendments of L. 1916, ch. 622, to Workmen's Compensation Law, § 23. In the decision referred to, the Appellate Division said:

The act provides (§ 68) that the Commission in conducting a hearing shall not be bound by common-law or statutory rules of evidence, or by technical or formal rules of procedure, except as in the act provided, but that the Commission may make such investigation, or inquiry, or conduct the hearing in such manner as to ascertain the substantial rights of the parties; that (§ 20) in making or denying an award, the Commission shall make and file a statement of its conclusions of fact and rulings of law; that the decision of the Commission shall be final as to all questions of fact, and except in case of appeal to this court, final as to all questions of law; and that (§ 23) such appeal shall be heard in a summary manner, and shall have precedence in this court over all other civil cases. There is no provision of the statute or rule of this court requiring the filing of exceptions, or, as in England and in some of the States, that the grounds of appeal be stated in the notice of appeal; but it was intended that the procedure both before the Commission and in this court should be simple and without unnecessary delay or useless formality; and that until otherwise provided, the appeal to this court should bring up the whole case, to be heard upon the record of the Commission and the briefs and arguments submitted by the respective parties. Kenny v. Union Railway Co., 166 App. Div. 497, March 3, 1915.*

E. Appeal from Appellate Division to Court of Appeals. The law governing appeals from the Appellate Division to the Court of Appeals in workmen's compensation cases is the Code of Civil Procedure, 189, 191, as based on the Constitution of New York, Art. 6, §§ 1, 9, and as qualified by the amendment of L.

The full text of the Kenny case appears above, p. 256. For other cases see also Procedure and Evidence," pp. 364-397.

under

1916, ch. 622, to Workmen's Compensation Law, § 23, which makes the sentence relative to such appeals read: "An appeal may also be taken to the Court of Appeals in all cases where the decision of the Appellate Division is not unanimous, etc." In dismissing an appeal from an order of the Appellate Division unanimously affirming an award of the Workmen's Compensation Commission, the Court of Appeals had thus interpreted the law of appeal from unanimous decisions:

The Workmen's Compensation Law was enacted to provide a new remedy to the employee who received accidental injuries in the course of his employment, or in case of the death of the employee, to his dependents. (Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514.) It provides a summary remedy which differs in substantial respects from a civil action to recover damages for personal injuries caused by negligence. It is not instituted in a court, but is conducted by an administrative board or commission, and is commenced by a notice of injury and claim. Notice is given to all parties interested. The proceedings before the commission are informal. The decision of the commission on the facts is made final and conclusive. (Workmen's Compensation Law, section 20.) In the absence of constitutional or statutory sanction there is no right of appeal. The provision of section 23 of the Workmen's Compensation Law that an appeal may be taken to the Court of Appeals in all cases where such an appeal would lie from a decision of the Appellate Division, is subject to the restriction contained in the clause of the statute which provides that such appeals may be taken "in the same manner and subject to the same limitations as is (are) now provided in civil actions." By this language the legislature intended to assimilate the practice upon appeal to the Court of Appeals in these cases to the practice now obtaining upon appeals from judgments in actions for damages for personal injuries resulting from negligence. The limitation upon appeals in actions of that character is contained in section 191 of the Code of Civil Procedure. Under the limitation therein prescribed no unanimous decision of the Appellate Division is appealable to the Court of Appeals unless the Appellate Division permits such an appeal and certifies that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals, or unless, in case of its refusal to so certify, an appeal is allowed by a judge of the Court of Appeals. A different interpretation would fail to give effect to the provision of section 23 of the Workmen's Compensation Law, which subjects appeals from a decision of the Appellate Division to the same limitations that are now provided in civil actions of the character referred to. The policy of the Workmen's Compensation Law was to devise a method by which payments to workmen who sustained personal injuries should be made in an expeditious manner, and thus avoid the delays incident to the method of granting relief in cases of this character through a civil action for damages. We do not think that the legislative design was to extend the right of appeal or to permit appeals to this court in cases arising under the Workmen's Compensation Law where no right of appeal would exist if the employee had sought to enforce his rights in an action for damages