Manhattan Brass Co., Bul., vol. 2, p. 91; Gurnett v. Ross Co., Bul., vol. 2, p. 126; and Gifford v. Patterson, Bul., vol. 2, p. 129, has taken note of the new definition of an employee in this subdivision as revised by L. 1916, ch. 622.

A tailor injured by his scissors while doing piece work away from the plant of his employer received compensation: Fiocca v. Dillon, S. D. R., vol. 7, p. 399; 175 App. Div. 957.

The phrase "away from the plant " is a basis for grant of compensation in extraterritorial cases; the Court of Appeals has affirmed awards for injuries occurring beyond the state's bounds in Post v. Burger & Gohlke, 168 App. Div. 403; 216 N. Y. 544; Spratt v. Sweeney & Gray Co., 168 App. Div. 403; 216 N. Y. 763; Klein v. Stoller & Cook Co., 175 App. Div. 958; 220 N. Y. Rep. ; and Fitzpatrick v. Blackall and Baldwin Co., App. Div. -; 220 N. Y. Rep. but compare Gardner v. Horseheads Construction Co., S. D. R., vol. 4, p. 437; 171 App. Div. 66; and Lloyd v. Power Specialty Co., S. D. R., vol. 7, p. 409, extra-territorial cases in which the Appellate Division and the Commission have denied compensation notwithstanding the Court of Appeals decisions; the Commission's statement of facts in the award cases of Klein and Fitzpatrick, affirmed by the Court of Appeals without opinion, may be consulted in S. D. R., vol. 8, pp. 440, 456; award for an injury incurred in Canada has been unanimously affirmed by the Appellate Division in Kennedy v. Kennedy Mfg. and Engineering Co., S. D. R., vol. 7, p. 383; Bul., vol. 1, no. 8, p. 8; 177 App. Div. 56 (reargument granted May 17, 1917); compare also Jenkins v. Hogan & Sons, S. D. R., vol. 9, p. 380; 177 App. Div. 41.

The converse of extra-territorial effect of the New York workmen's compensation law is extra-territorial effect of the workmen's compensation laws of adjoining or other states relative to accidents occurring in New York; if an employee of an employer insured under the New Jersey or Massachusetts compensation law crosses into New York and receives an injury, will the New York courts recognize and apply the New Jersey or Massachusetts compensation law to the exclusion of an action for negligence? A number of cases involving the question have been variously acted upon by the Supreme Court; compare generally Schweitzer v. Hamburg-American Line, 78 Misc. 448; Albanese v. Stewart, 78 Misc. 581; Pensabene v. Auditore Co., 78 Misc. 538; 155 App. Div. 368; Wasilewski v. Warner Sugar Refining Co., 87 Misc. 156; Lehmann v. Ramo Films Co., 92 Misc. 418; McCarthy v. McAllister Steamboat Co., 158 N. Y. Supp. 563; Verdicchio v. McNab & Harlin Mfg. Co., 164 N. Y. Supp. 290; Barnhardt v. American Concrete Steel Co., Bul. of Gen'l Contractors Ass'n, vol. 7, p. 224; Banchiere v. American Brass Co., Idem, vol. 7, p. 223; no case appears to have reached the Court of Appeals; the subject is presented in Bulletin No. 203 of the U. S. Bureau of Labor Statistics, pp. 62, 220.

Farm laborers are defined in Coleman v. Bartholomew, 175 App. Div. 122, where an employee was injured while slating a barn roof; the Commission denied compensation to a painter injured while painting a farm building: McComsey v. Simmons, S. D. R., vol. 7, p. 433.

Distinction between an independent contractor and an employee is made in Rheinwald v. Builders' Brick & Supply Co., S. D. R., vol. 1, p. 417; 168 App. Div. 425; S. D. R., vol. 7, p. 440; 174 App. Div. 935; Powley. v. Vivian & Co., S. D. R., vol. 3, p. 366; 169 App. Div. 170; McNally v. Diamond Mills Paper Co., S. D. R., vol. 8, p. 431; vol. 9, p. 352; App. Div. --, May 2, 1917; and Kramer v. Schalk, S. D. R., vol. 8, p. 444. Suggestive details relative to the customary relations of employer and employee in the timber cutting industry are given in Sullivan v. Preston, S. D. R., vol. 10, p. 566.

In several instances the Appellate Division has sustained awards to officers or stockholders injured while working for their corporations as ordinary employees: Bowne v. Bowne Co., S. D. R., vol. 9, p. 388; 176 App. Div. 131; Howard v. Howard, S. D. R., vol. 9, p. 355; App. Div. Jan. 12, 1917; Kennedy v. Kennedy Mfg. & Engineering Co., S. D. R., vol. 7, p. 383; Bul., vol. 1, no. 8, p. 8; 177 App. Div. 56; Reddy v. National Excavating Co., S. D. R., vol. 10, p. 621; App. Div. -, May 2, 1917; the Court of Appeals, reversing one of these, has declared that the workmen's compensation law does not obliterate the distinction between the higher executive officers of a corporation and its workmen: Bowne v. Bowne, 221 N. Y. 28; however, an amendment of L. 1916, ch. 622, adding § 54, subd. 6, provides a voluntary plan of insurance for employers who perform labor incidental to their occupations.

An employee's status relative to compensation is not affected by false statements made by him to obtain his employment: Kenny v. Union Ry. Co., 166 App. Div. 497; nor by violation of law by him at time of his injury: McDermott v. Ingersoll & Bros., Bul., vol. 2, p. 45; S. D. R., vol. 11, p.

App. Div. , May 2, 1917; nor ordinarily by injury while disobeying orders of his employer: Moell v. Wilson, S. D. R., vol. 9, p. 310; Lee v. Smith & Sons Co., S. D. R., vol. 10, p. 584.

5. "Employment " includes employment only in a trade, business or occupation carried on by the employer for pecuniary gain, 1or in connection therewith, 2except where the employer and his employees have by their joint election elected to become subject to the provisions of this chapter as provided in section two. [Subd. 5 am'd by L. 1916, ch. 622; and L. 1917, ch. 705.] 1 Words or in connection therewith," inserted by L. 1917, ch. 705. 2 Words except where

section two," added by L. 1916, ch. 622.

On the ground that the employers were not carrying on the carpentry business for pecuniary gain, compensation for accidental injury has been denied to a carpenter casually employed to put a partition in a macaroni factory: Bargey v. Massaro Macaroni Co., 170 App. Div. 103; 218 N. Y. 410; to an apartment house superintendent planing the top of a door: Schmidt v. Berger, S. D. R., vol. 7, p. 432; 175 App. Div. 957; 221 N. Y. 26; to a workman casually employed to roof a farmer's barn: Coleman v. Bartholomew, 175 App. Div. 122; to a property man lowering stage furniture through a trap door: Adler v. Thomashefsky Theatre Co., S. D. R., vol. 9, p. 348; and to an employee repairing the work bench of a dealer in sausage casings: Lupke v. Simon, Bul., vol. 2, p. 45.

Accidental injury, however, to a regularly employed handy man of a wholesale drug establishment while building a shelf is compensatable: Larsen v. Paine Drug Co., 169 App. Div. 838; 218 N. Y. 252; compare also the opinion of the Court of Appeals in Mulford v. Pettit & Sons, 220 N. Y. 540, and the Commission's opinions in Geller v. Republic Novelty Works, Bul., vol. 2, p. 104, and Caine v. Greenhut & Co., Bul., vol. 2, p. 125.

In Mihm v. Hussey, 169 App. Div. 742, the case of a wholesale merchant storing his own goods, the court held that storage other than for hire was not carried on for pecuniary gain. The effect of this decision as a precedent appears to be met specifically by the amendment of L. 1916, ch. 622, to § 2, gr. 29, inserting the words "of all kinds and storage for hire and generally by the above amendment of L. 1917, ch. 705, to this subdivision, inserting the words or in connection therewith."

Organizations not primarily created for pecuniary gain may nevertheless bring themselves within the law by engaging in profit-yielding enterprises, as illustrated by Uhl v. Hartwood Club, S. D. R., vol. 9, p. 360; Bul., vol. 2, p. 27; 177 App. Div. 41; affirmed by Court of Appeals, July 11, 1917; and Kaempfer v. Automobile Club of America, S. D. R., vol. 10, p. 591. Accidental injury to an employee in experimental work carried on with a view to pecuniary profit is compensatable: Galelli v. Magnesite Products Co., S. D. R., vol. 7, p. 416.

Besides the exception of joint electors from the pecuniary gain limitation, as made in this subdivision, § 2, gr. 43, excepts state and municipal employees.

6. "Compensation " means the money allowance payable to an employee or to his dependents as provided for in this chapter, and includes funeral benefits provided therein.

Compare 8 15 and 16.

7. "Injury" and "personal injury " mean only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom.

According to definition approved by the Appellate Division and the Court of Appeals, an accident is "an unlooked for mishap or an untoward event which is not expected or designed," being limited so that "an act done deliberately and wilfully by a third party may be an accident from the view-point of employer and employee." Loss of vision due to strong light is not an accident: Surfass v. American LaFrance Fire Engine Co., Files of Commission. Claim No. 55428; neither is

swelling of an elbow due to constant twisting of cans: Tracy v. DeLaval Separator Co., S. D. R.. vol. 7, p. 385. The merest scratch or cut may be an accident: Henry v. Levor & Co., S. D. R., vol. 6, p. 388; Eldridge v Endicott, Johnson & Co., S. D. R., vol. 8, p. 445; Hiers v. Hull Co.; S. D. R., vol. 8, p. 486;

difficult.

App. Div.

May 2, 1917; also frostbite: Days v. Trimmer & Sons, S. D. R., vol. 9, p. 285; 176 App. Div. 124. The definition is discussed in Naud v. King Sewing Machine Co., 95 Misc. 676; James v. Witherbee, Sherman & Co., S. D. R., vol. 2, p. 483; Yume v. Knickerbocker Portland Cement Co., S. D. R., vol. 3, p. 353; Heitz v. Ruppert, 218 N. Y. 148; and Fowler v. Risedorph Bottling Co., 175 App. Div. 224. The Commission must be satisfied that an accident has happened before the presumptions established by § 21 can arise: Hyland v. Winant, S. D. R., vol. 6, p. 304. To trace disease, internal injury or unwitnessed death to accident is often The phrase "arising out of" broadens the coverage of the hazardous employments enumerated in § 2 to include work and occupations incidental to them. Court decisions have not yet (June, 1917) determined the effect of the insertion of the phrase "principal business" in § 3, subd. 4, above, by L. 1916, ch. 622. Distinction between incidentalness and non-incidentalness has been drawn, with citation of precedents, in Newman v. Newman, 169 App. Div. 745; and Gleisner v. Gross & Herbener, 170 App. Div. 37. Important cases illustrative of the principle are referred to in the notes on operation of vehicles, § 2, gr. 41, and on employees coming to, or leaving work, watchmen and salesmen, § 3, subd. 4.

In the following cases the accidental injuries have been held incidental: injury while building a shelf: Larsen v. Paine Drug Co., 169 App. Div. 838; 218 N. Y. 252; injury while seeking shelter from storm: Moore v. Lehigh Valley R. R. Co., 169 App. Div. 177; 217 N. Y. Rep. 627; injury from contact with poison ivy: Plass v. Central New England Ry. Co., 169 App. Div. 826; injury due to assault connected with dispute about employment, methods of work, etc.: Yume v. Knickerbocker Portland Cement Co., S. D. R., vol. 3, p. 353; 169 App. Div. 905; 216 N. Y. 653; Harnett v. Steen Building Co., 169 App. Div. 905; 216 N. Y. 101; Heitz v. Ruppert Brewery Co., 171 App. Div. 961; 218 N. Y. 148; James v. Witherbee, Sherman & Co., S. D. R., vol. 2, p. 483; injury while going to rescue of another workman: Waters v. Taylor Co., 170 App. Div. 942; 218 N. Y. 248; Martucci v. Hills Bros. Co., 171 App. Div. 370; injury due to embrace of another employee: Markell v. Green Felt Shoe Co., S. D. R., vol. 8, p. 487; 175 App. Div. 958; affirmed by Court of Appeals, May 8, 1917; injury while inspecting machinery: Benton v. Frazier, S. D. R., vol. 5, p. 392; 172 App. Div. 913; 219 N. Y..210; injury while unloading beef from a car: Meyer v. Morris & Co., S. D. R., vol. 6, p. 334; 173 App. Div. 990; 219 N. Y. Rep. 647; injury while attending a call of nature: Cino v. Morton & Gorman, S. D. R., vol. 5, p. 387; 172 App. Div. 917; Putnam v. Murray, S. D. R., vol 6, p. 355; 174 App. Div. 720; DeFilippis v. Falkenberg, S. D. R., vol. 4, p. 375; 170 App. Div. 153; reversed on other grounds, 219 N. Y. 581; injury due to slipping or tripping on stairs or floors: Leslie v. O'Connor & Richman, S. D. R., vol. 5, p. 383; 173 App. Div. 988; Naro v. Rueckheim Bros. & Eckstein, S. D. R., vol. 7, p. 484; 175 App Div. 958; injury while looking at a ticket on a piece of cloth: Berliner v. Ritchie & Cornell, S. D. R., vol. 4, p. 446; 172 App. Div. 913; injury from accidental discharge of a revolver: Bopp v. Eclipse Box & Lumber Co., Bul., vol. 2, p. 65; injury while watching a fire: Rzepczniski v. Manhattan Brass Co., Bul., vol. 2 p. 91; unanimously affirmed by the Appellate Division, July 3, 1917; and injury while removing a window shade: Tracy v. Mertens, Bul., vol. 2, p. 102.

In the following cases the accidental injuries have been held not incidental: injury due to sportive act or horseplay: DeFilippis v. Falkenberg, S. D. R., vol. 4, p. 375; 170 App. Div. 153; 219 N. Y. 581; injury due to poison taken by mistake: O'Neil v. Carley Heater Co., S. D. R., vol. 6, p. 314; 173 App. Div. 922; 218 N. Y. 414; injury due to ammonia thrown in face by mistake; Saenger v Locke, S. D. R., vol. 9, p. 330; 175 App. Div. 963; 220 N. Y. 556; injury due to assault not connected with work; Cowen v. Cowen's New Shirt Laundry, S. D. R., vol. 8, p. 481; 176 App. Div. 924; Griffin v. Roberson & Son, S. D. R., vol. 9, p. 303; 176 App. Div. 6; injury while swimming as diversion from work; McManus v. Lord & Taylor, S. D. R., vol. 6, p. 393; injury while procuring a newspaper; McGuire v. Brooklyn Heights R. Co., Bul., vol. 2, p. 30; and injury while rescuing a coemployee's slipper; Holmes v. U. S. Printing Co., Bul,. vol. 2, p. 93.

Thus, in

The subtle connections of accidental injury with ensuing infection or disease would seem to offer a wide and varied field for controversy as to facts. The courts, by § 20, are prohibited from review of facts. They have held that they can take cognizance of evidence relative to a given case only where there are no facts, no reasonable evidence, no evidence of probative force. Compare note on evidence under § 23. Therefore, the issues of such disease cases as have been adjudicated by the courts have turned upon evidence rather than upon disease per se. Carroll v. Knickerbocker Ice Co., 169 App. Div. 450; 218 N. Y. 435, the issue was hearsay evidence rather than delirium tremens; and in Bloomfield v. November, S. D. R., vol. 5, p. 385; 172 App. Div. 917; 219 N. Y. 374, notice of the accident rather than ensuing infection. Accidents due solely to disease are not compen.satable: Collins v Brooklyn Union Gas Co., S. D. R., vol. 4, p. 449; 171 App. Div. 381. In a multitude of cases, the Commission, without reversal by the courts, has held that not only disease resulting or ensuing from accident but disease aggravated, accelerated, developed or hastened by accident is compensatable. A simple illustration of accelerated disease is the case of the employee who, being afflicted with heart defects, known or unknown, incurs a heavy strain or other accident which causes sudden death or continuous disability through heart failure or weakness: Uhl v. Guarantee Construction Co., S. D. R., vol. 8, p. 479; 174 App. Div. 571; Hackford v. Veeder & Brown, S. D. R., vol. 8, p. 472; 176 App. Div. 924; and LaFleur v. Wood, S. D. R., vol. 8, p. 405, affirmed by Appellate Division, May 2, 1917. The following cases that have reached the courts also illustrate aggravation of disease or development of unknown latent disease: cancer revealed by a fall from a wagon Blatt v. Schonberger & Noble, S. D. R., vol. 7, p. 388; 176 App. Div. 924; typhoid fever developed by a fall from a wagon Banks v. Adams Express Co., S. D. R., vol. 7, p. 471; 176 App. Div. 916; sarcoma of the bone aggravated by a blow: Prokopiak v. Buffalo Gas Co., S. D. R., vol. 7, p. 390; 176 App. Div. 128; a diseased left eye injured by an emery particle: Blaes v. Bliss Co., S. D. R., vol. 9, p. 288, affirmed by Appellate Division, March 7, 1917; a diseased appendix exacerbated by a fall down a canal bank: Lindquest v. Holler & Shephard, S. D. R., vol. 10, p. 607; affirmed by Appellate Division, May 2, 1917; and diseased adnexa inflamed by heavy lifting: Owens v N. Y. Mills Corp., S. D. R., vol. 9, p. 367; affirmed by Appellate Division, May 2, 1917; the following Commission awards are worthy of note: heart disease hastened by overwork and stair climbing: McMurray v. Little & Ives Co., S. D. R., vol. 3, p. 395; or by a blow in the abdomen: Cook v. N. Y. Central & H. R. R. R. Co., S. D. R., vol. 8, p. 469; tuberculosis accelerated by bruising of limbs : Nelson v. Campagnie G. T. S. S. Co., Bul., vol. 2, p. 44; S. D. R., no. 64, p. 118; a bunion or a carbuncle "bunked" with resultant poisoning of system: Whalen v. N. Y. & Cuban Mail S. S. Co., Bul. of Gen. Contractors Assn, March, 1917, p. 64; Caine v. Greenhut & Co., Bul., vol. 2, p. 125.

The following court cases illustrate diseases resulting from accident: anthrax : Hiers v. Hull Co., S. D. R., vol. 8, p. 486; affirmed by Appellate Division, May 2, 1917; apoplexy and degeneration of the brain: Fowler v. Risedorph Bottling Co., S. D. R., vol. 8, p. 404; 175 App. Div. 224; delirium tremens: Sullivan v. Industrial Engineering Co., S. D. R., vol. 6, p. 401; 173 App. Div. 65; Dunn v. West End Brewing Co., S. D. R., vol. 5, p. 380; 174 App. Div. 900; tuberculosis: Rist v. Larkin & Sangster, S. D. R., vol. 5, p. 381; 171 App. Div. 71; bronchitis or congestion of lungs: Plass v. Central N. E. R. R. Co., S. D. R., vol. 4, p. 331; 169 App. Div. 826; tetanus: Putnam v. Murray, S. D. R., vol. 6, p. 355, vol. 7, p. 407; 174 App. Div. 720. For a case of insanity resulting from accident, compare McMahon v. Interborough R. T. Co., S. D. R., vol. 5, pp. 371, 374; for additional anthrax cases: Henry v. Levor & Co., S. D. R., vol. 6, p. 388; Eldridge v. Endicott, Johnson & Co., S. D. R., vol. 8, p. 445; for infection cases: Bloomfield v. November, S. D. R., vol. 5, p. 385; 172 App. Div. 917; 219 N. Y. 374; Leslie v. O'Connor & Richman, S. D. R., vol. 5, p. 383; 173 App. Div. 988; 220 N. Y. Rep. ; and Staufenberg v. Muller & Son, S. D. R., vol. 10, p. 563; affirmed by Appellate Division, May 2, 1917.

The Commission, on ground of the lack of evidence, has denied benefits to widows for the deaths of their husbands from the following diseases: blood poisoning claimed to have been due to rupture of the mucus membrane inside of the nose, permitting the entrance of germs, the rupture having been caused by an accidental blow from a container, S. D. R., vol. 6. p. 336; tubercular trouble claimed to nave been hastened by the fracture of a leg, S. D. R., vol. 6, p. 349; intestinal ulcers

claimed to have been caused by crushing of the body against a truck, S. D. R., vol. 6, p. 304; lobar pneumonia claimed to have been due to weakness caused by the amputation of a finger, S. D. R., vol. 6, p. 383; and a paralytic stroke or an embolism claimed to have resulted from severe vibration of a compressed air drill, S. D. R., vol. 7, p. 376.

66

8. Death 99 when mentioned as a basis for the right to compensation means only death resulting from such injury.

66

9. Wages" means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging or similar advantage received from the employer.

For the use of wages as the basis of compensation, see §§ 14, 15, 101, 102, 113. means the state insurance fund provided for in article

10. State fund 99

five of this chapter.

66

11. Child " shall include a posthumous child a child legally adopted prior to the injury of the employee; 1and a step-child 2or acknowledged illegitimate child dependent upon the deceased. [Subd. 11 am'd by L. 1916, ch. 622; and L. 1917, ch. 705.]

1 Words

622.

"and a step-child dependent upon the deceased," added by L. 1916, ch.

66

2 Words or acknowledged illegitimate child," inserted by L. 1917, ch. 705. Compare 16.

Death benefits are awardable to children adopted under Indian tribal laws: Jackson v. Sherman Paper Co., S. D. R., vol. 10, p. 605; and to children begotten after accidents: Crockett v..International Ry. Co., 176 App. Div. 45.

The inclusion of acknowledged illegitimate children by L. 1917, ch. 705, partly offsets the decisions in Bell v. Terry & Tench Co., 177 App. Div. 123, March 7, 1917; and Berger v. Shadboldt Manufacturing Co., S. D. R., vol. 8, p. 460.

66

12. Insurance carrier" shall include the state fund, stock corporations or mutual associations with which employers have insured, and employers permitted to pay compensation directly under the provisions of subdivision three of section fifty.

13.

66

99 66

""construction,"

Manufacture," operation" and "installation shall include " repair," ," "demolition" and "alteration" 1and shall include all work done in connection with the repair of plants, buildings, grounds and approaches of all places where any of the hazardous employments are being carried on, operated or conducted. [Subd. 13 added by L. 1916, ch. 622; am'd by L. 1917, ch. 705.]

1 Remainder of subdivision added by L. 1917, ch. 705.

ARTICLE 2
COMPENSATION

Section 10. Liability for compensation.

11. Alternative remedy.

12. Compensation not allowed for first two weeks.

13. Treatment and care of injured employees.

14. Weekly wages basis of compensation.

15. Schedule in case of disability.

16. Death benefits.

17. Aliens.

18. Notice of injury.