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and 120 New York State Reporter counts in the declaration—two of them under the employer's liability act, and the third under the common law~and the defendant requested the trial court to hold that, the notice required by the statute not having been served, the action could not be maintained under the employer's liability act. The court so ruled, and the trial proceeded under the common-law count. Page 144, 160 Mass., 35 N. E. 451. And upon appeal the court say:
“In statutes like that under which two counts of this action were brought, the requirement of notice is held to make a condition precedent to the right to bring an action, not on a nice interpretation of the particular words used, but upon a general view of what the Legislature would be likely to intend."
This held simply that as to the counts which sought recovery under the provisions of the employer's liability act, the notice was a condition precedent, but it nowhere appears in the opinion of the court that there was any doubt as to the right of the plaintiff to maintain a common-law action for the injuries he had suffered. On the contrary, the action was maintained upon the common-law count, and the same practice appears to have been followed in Ellsbury v. New York, etc., Railroad, 172 Mass. 130, 51 N. E. 415, 70 Am. St. Rep. 248, although the point was not discussed.
We are forced to conclude that, where a common-law cause of action is set up in a complaint, it is error to dismiss the same except upon a failure of proof; that the plaintiff, confining himself to his pleadings, and attempting to gain no rights under the employer's liability act, is not governed by the provision for a notice within 120 days. This construction gives the statute all the force and effect which was intended. It gives a new cause of action and regulates the common-law remedy in so far as it applies to this new cause of action, and it would be dangerous to extend this burden to those who assert rights under the common law or under statutes complete in themselves. There is, as we have already pointed out, no presumption that the Legislature has intended to change the common law, and affirmative statutes are declarative only, and leave the common law in force. Dutchess County Mut. Ins. Co. v. Van Wagonen, supra. But, if this construction were less plain than it appears to us under the authorities already cited, we should still be constrained to hold that the complaint in this action was improperly dismissed, under the rule that in the construction of a statute which is susceptible of two constructions, one of which will render it valid and the other void, and both are equally reasonable, the courts incline to and will adopt that construction which renders the act valid, rather than one which avoids it (People ex rel. Sinkler v. Terry, 108 N. Y. 1, 7, 14 N. E. 815), because we have no doubt that under the construction which has been given to this statute it is in contravention of several very important provisions of the state and federal Constitutions. Section 2, c. 600, p. 1749, of the Laws of 1902, provides that "no action for recovery of compensation for injury or death under this act shall be maintained unless notice of the time, place and cause," etc., shall be given within 120 days from the happening of the accident; but, if the person injured dies without having given this notice, it is provided that his executor or administra
tor may do this within 60 days of his appointment. If this act is to be construed to extend to all cases arising under statutes and the common law where employés are concerned, and not to cases arising “under this act," as the statute reads, then there is room for a disagreement under the provisions of section i of article i and section 18 of the same article of the state Constitution, as well as under the fourteenth amendment to the federal Constitution. Section 18 of article 1 of the state Constitution provides: “The right of action now existing to recover damages for injuries resulting in death shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.” It is not to be doubted that by this provision the framers of the Constitution, and those who adopted it, intended to crystallize and embody in the fundamental law of the state-"the law of the land”—the entire statutory right of action, with its incidents, as defined in the original act (chapter 450, p. 575, of the Laws of 1847), and as fixed by sections 1902, 1903, 1904, and 1905 of the Code of Civil Procedure; this being evidenced by the fact that, as section 1904 then stood, it provided a limitation of $5,000 upon the recovery, while the constitutional provision continuing the right of action provided that it should not be subject to any statutory limitation. See Meekin v. B. H. R. R. Co., 164 N. Y. 145, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635. Speaking of this same provision of the Constitution and statute, in determining whether the provision doing away with the limitation was retroactive, the court in O'Reilly v. Utah, Nevada & Cal. Stage Co., 87 Hun, 406, 411, 34 N. Y. Supp. 358, 361, say:
"Upon the death of the intestate his administratrix had a fixed right to recover the damages sustained by his wife or next of kin by reason of his death, and the statute giving that right limited the defendant's liability to $5,000. Both litigants bad rights and liabilities created and limited by those statutory provisions. By these statutes a new remedy was not simply provided, but a new right and liability were created, and the statutory provision became a part of the substantive law of the state.
The effect of the constitutional provision above quoted is twofold—it imposes a greater liability on persons wrongfully or unlawfully causing the death of others, and confers additional benefits on persons in wlose favor a right of action is given for such wrongs,” etc.
This case was approved (Isola v. Weber, 147 N. Y. 333, 41 N. E. 704), and has been followed, in Kiefer v. Grand Trunk R. Co., 12 App. Div. 28, 32, 42 N. Y. Supp. 171, and in Weber v. Third Avenue R. R. Co., 12 App. Div. 512, 42 N. Y. Supp. 789. See, also, Whitford v. Panama R. R. Co., 23 N. Y. 465, 469. In harmony with this view is the rule often laid down by the courts that, "where a statute gives a right unknown to the common law, and limits the time within which an action shall be brought to assert it, the statutory limitation measures the extent and qualifies the nature of the right conferred.” Dailey v. N. Y. O. & W. R. R. Co., 26 Misc. Rep. 539, 540, 57 N. Y. Supp. 485; The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358; Wooden v. W. N. Y. & P. R. R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. R. A. 458, 22 Am. St. Rep. 803 ; Hill v. Board of Supervisors, 119 N. Y. 344, 347, 23 N. E. 921. In the latter case it was said that, where the statute creates a new cause
and 120 New York State Reporter of action, "the limitation of time is so incorporated with the remedy given as to make it an integral part of it, and the condition precedent to the maintenance of the action at all.”
If we are correct in the view that the quoted section of the Constitution continued not only the right of action then existing, but its limitations and conditions as fixed by the statute (and they were ail a part of the legislative enactments then in force, except as modified by the Constitution removing the limitation as to amount), it follows that an executor or administrator of “a decedent who has left him or her surviving a husband, wife, or next of kin” has an absolute right, during a period of two years, to “maintain an action to recover damages for a wrongful act, neglect, or default by which the decedent's death was caused, against a natural person who, or a corporation which would have been liable to an action in favor of the decedent, by reason thereof, if death had not ensued.” This being an absolute right, guarantied by the Constitution, and relating not to employés who are injured "by reason of any defect in the condition of the ways, works, or machinery connected with or used in the business,” etc., or “by reason of the negligence of any person in the service of the employer,” etc. (section 1, c. 600, p. 1748, Laws 1902), but to any decedent "to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused" (section 1902, Code Civ. Proc.), it follows that any statutory provision which interferes with that right, and makes a condition precedent to apply only to employés, is void, as in excess of its powers, and as a denial of that equal protection of the law which is guarantied by the fourteenth amendment and by section I of article i of our state Constitution. By the provisions of section 1902 of the Code of Civil Procedure, now a part of the state Constitution, the executor or administrator of every decedent who is killed under circumstances which, at common law, would give him a right of action if he survived, is entitled to maintain an action for the benefit of surviving husband, wife, or next of kin during a period of two years, without any other limitations; while, if chapter 600, p. 1748, of the Laws of 1902, is given the construction which has been sanctioned in one department of this court, employés injured through the neglect of the master will be compelled to submit to a condition which is not imposed upon other citizens of this state as a condition of maintaining such actions. The first section of the first article of our Constitution provides—and its language is beautiful in its comprehensive simplicity --that "no member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers." It cannot be questioned that citizens of this state generally are entitled to maintain actions under the provisions which we have cited without giving any notice of the time or place of the accident. This right is guarantied to employés in common with every other citizen, where the right of action would have accrued at common law to the decedent if he had lived; but it is proposed by a system of judicial legislation to extend the provisions of chapter 600, p. 1748, of the Laws of 1902, intended to "extend and regulate the liability of employers," so as to compel all employés, whether proceeding at common law or under the statute, to
give a notice, which is not required of other citizens who are injured
"Every one has a right to demand that he be governed by general rules; and a special statute, which, without his consent, singles his case out as one to be regulated by a different law from that which is applied in all similar cases, would not be legitimate legislation, but would be such an arbitrary mandate as is not within the province of free governments. Those who make the laws are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the farorite at court and the countryman at plow. This is a maxim in constitutional law, and by it we may test the authority and binding force of legislative enactments."
In State v. Haun, 61 Kan. 146, 59 Pac. 340, 47 L. R. A. 369, the court lays down the proposition that "equal protection of the laws means equal exemption with others of the same class from all charges and burdens of every kind." The court, in Cotting v. Kansas City Stock Yards Co., 183 U. S. 79, 112, 22 Sup. Ct. 30, 43, 46 L. Ed. 92, after declaring that, “If once the door is opened to the affirmance of the proposition that a state may regulate one who does much business, while not regulating another who does the same but less business, then all significance in the guaranty of the equal protection of the laws is lost, and the door is opened to that inequality of legislation which Mr. Justice Catron referred to in the quotation above made," says:
"We think, therefore, that the principle of the decision of the Supreme Court of Kansas in State v. Haun, supra, is not only sound, but is controlling in this case, and that the statute must be held unconstitutional, as in conflict with the equal protection clause of the fourteenth amendment."
and 120 New York State Reporter We are unable to distinguish the principle of this case from that of the case at bar, if the statute is to have the construction contended for by the respondent. The common-law cause of action rests, not upon whether the party is an employé or employer, not whether he resides in this locality or that, but upon the broad ground of an injury sustained through a wrongful or negligent act or omission on the part of another. This cause of action rests upon this same broad basis in every part of the state, and it is the foundation on which rests the new cause of action created by section 1902 of the Code of Civil Procedure, and in a measure of the new cause of action created by chapter 600, p. 1748, of the Laws of 1902. The cause of action being the same in all parts of the state to every individual, and every member of this state being guarantied against being "deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers," it follows, under the definitions which we have quoted, that the remedy for this wrong must be the same to every individual in every part of the state; and whether he is a master or a servant, whether he is white or black, whether he lives in the borough of Brooklyn or the village of Port Chester, this right may be taken from him only by a general law operating equally upon every other citizen or inhabitant of the state. “This statute,” say the court in the case of Cotting v. Kansas City Stock Yards Co., 183 U. S. 112, 22 Sup. Ct. 43, 46 L. Ed. 92, "is not simply legislation which in its indirect results affects different individuals or corporations differently, nor with those in
which a classification is based upon inherent differences in the char· acter of the business, but is a positive and direct discrimination be
tween persons engaged in the same class of business, and based simply upon the quantity of business which each may do. If such legislation does not deny the equal protection of the laws, we are unable to perceive what legislation would.” So, if legislation may step in and say that a man who is an employé, who is injured under circumstances giving him a common-law right of action, may be compelled to give a notice within 120 days of such accident, while a like condition is not required of his neighbor who may be injured in the same accident, the foundation of the right resting upon the same broad principles, there is little of efficiency in constitutional guaranties. To make this proposition more clear and certain, it may be proper to refer to yet other constitutional provisions which would seem to demand that there be no discrimination as between individuals in the protection of their rights. By the provisions of section 2 of article 6 of the Constitution of the United States it is provided that “this Constitution and the laws of the United States, which shall be made in pursuance thereof,
shall be the supreme law of the land”; and the fourteenth amendment makes the sweeping provision: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Whatever differences of opinion may exist as to what are in fact the "privileges and immunities of citizens