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adequately, and any agreement between husband and wife which undertakes to limit the former's liability to a specific provision to that extent, at least, tends to relieve him in that respect, since, if the agreement is held to be operative, its effect would be to preclude all inquiry into the sufficiency of the provision.
Our conclusion is that the attempted agreement between the parties to this action was not sanctioned by the domestic relations law, and the judgment should therefore be reversed, and the complaint dismissed, with costs. All concur.
(89 App. Div. 245.)
ROSIN v. LIDGERWOOD MFG. CO. (Supreme Court, Appellate Division, Second Department. December 30, 1903.) 1. STATUTE-CONSTRUCTION-TITLE.
While the title constitutes no part of an act, it may be considered as a key to the correct interpretation thereof where the intent is other
wise ambiguous. 2 SAME-ABROGATION OF COMMON LAW.
There can be no inference that the Legislature intended by Laws 1902, p. 1748, c. 600, entitled "An act to extend and regulate the liability of employers,” to abrogate any right of action existing under the statutes or common law, unless such intention is clearly to be drawn from and 120 New York State Reporter are equally reasonable, the courts will adopt the construction which ren
the language of the act itself. 3. SAME-PRESUMPTION.
An intention to change the rule of the common law will not be presumed from doubtful statutory provisions. The presumption is that no such change is intended unless the statute is explicit and clear in
that direction. 4 SAME-CUMULATIVE REMEDY-ELECTION.
Where a remedy existed at the common law for the wrong or injury against which a remedial statute is directed, if such statute provides a more enlarged or summary or more efficient remedy for the party aggrieved, but does not in terms or by necessary implication de prive him of the common-law remedy, the statutory remedy is considered as merely cumulative, and the party injured may resort to either
at his election. 6. MASTERS-INJURIES TO SERVANTS-EMPLOYERS' LIABILITY-NOTICE OF IN
Laws 1902, p. 1748, c. 600, extends the common-law liability of employers for negligence resulting in injury to servants so as to render the employer liable for the negligence of persons intrusted with superintendence, and gives to the injured employé, or in case of death, to his executor or administrator, the same remedies against the employer as he would have had had he not been an employé. Section 2, p. 1749, of the act provides that no action for recovery for injury or death “under this act” shall be maintained, unless notice of the injury be given to the employer within 120 days thereafter. Held, that the statute does not affect the employer's common-law liability nor the employé's right to recover in a common-law action without giving the notice required by section 2, but such notice is required only in actions to enforce the
extended statutory liability imposed by the act. & STATUTES-CONSTBUCTION-UNCONSTITUTIONAL CONSTRUCTION.
In the construction of a statute which is susceptible of two constructions, one of wbich will render it valid and the other void, and both
15. See Master and Servant, vol. 34, Cent. Dig. $ 806.
ders the act valid, rather than the one which avoids it. 7. CONSTITUTIONAL LAW-EQUAL PRIVILEGES-DISCRIMINATIONS IN CONDI TIONS of SUIT.
Const, art. 1, § 1, provides that no member of the 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. Section 18 of the same article provides that the existing right of action to recover damages for death shall never be abrogated, thereby ingrafting into the Constitution the existing conditions of Code Civ. Proc. $8 1902–1904, giving to executors of the decedents the same right to recover damages for an act resulting in the decedent's death which the decedent would have had had he not died. Laws 1902, p. 1748, c. 600, extending the liability of employers, and giving actions to employés or their executors for breaches of duty specified therein, provides in section 2, p. 1749, that no action for injury or death under the act shall be maintained unless notice of the accident shall be given within 120 days of such occurrence, or within 60 days of the appointment of an administrator. Held that, if the act be construed so as to require the specified notice in actions against employers for a breach not of the duties imposed by the act, but of their common-law duties, it imposes an additional burden on employés which is not imposed on others for wrongs resulting in injury or death, and would be in con
flict with the constitutional provision first above cited. S. SAME.
For the same reasons the act, if so construed, wouid violate Const. U. S. Amend. 14, forbidding states from denying to any person equal
protection of the law. Appeal from Municipal Court of New York.
Action by Joseph Rosin against the Lidgerwood Manufacturing Company. From a judgment of the Municipal Court dismissing the complaint and denying a new trial, plaintiff appeals. Reversed.
Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and HOOKER, JJ.
William F. Connell, for appellant.
WOODWARD, J. The plaintiff's complaint was dismissed upon motion of the defendant upon the ground that it did not state facts sufficient to constitute a cause of action, in that it did not allege the giving of the notice required by section 2, c. 600, p. 1749, of the Laws of 1902, known as the "Employers' Liability Act.” There is no suggestion
“” of any other defect in the complaint, which sets forth a good cause of action under the common law, and the questions presented upon this appeal are whether the giving of the notice provided in the act mentioned is necessary to a recovery in this acton, and, if it is, whether such act is constitutional.
The complaint was dismssed upon the authority of Gmaehle v. Rosenberg, 80 App. Div. 541, 80 N. Y. Supp. 705; Gmaehle v. Rosenberg, 83 App. Div. 339, 82 N. Y. Supp. 366, and Johnson v. Roach, 83 App. Div. 351, 82 N. Y. Supp. 203, where the question has been more or less involved, and the great respect which is due to a court of co-ordinate jurisdiction and powers demands that we should not lightly disregard its construction of the law. Yet the members of this court are oath-bound to discharge the duties of an appellate court, and we may not disregard our own convictions upon a question involving the rights of litigants in the discharge of those duties. Chapter 600, p. 1748, of the Laws of 1902, is entitled "An act to extend and regulate the liability of employers to make compensation for personal injuries suffered by employés," and, while the title constitutes no part of the act, it is well established by authority that it may be considered as a key to the correct interpretation of the statute, where that intent is otherwise somewhat ambiguous. People ex rel. C. Ins. Co. v. Coleman, 121 N. Y. 542, 544, 25 N. E. 51. The word "extend” implies something to be extended (12 Am. & Eng. Ency. of Law, 572), and there cannot, therefore, be any inference that the Legislature intended to abrogate any right of action existing under the statutes or the common law, unless such an intention is clearly to be drawn from the language of the act itself. It is to be noted, also, that the act is not to regulate the remedy, as it has been construed in another department of this court, but "to extend and regulate the liability of employers." The natural construction of the title, it seems to us, is that the liability of employers, as it existed at the time of the enactment of chapter 600, p. 1748, of the Laws of 1902, was to be extended and regulated, and, as the act does not purport to furnish any new remedy, but does extend the liabilities of employers, the limitation upon the "action for recovery of compensation for injury or death under this act” must relate not to the remedies existing under the common law and statutes as they were, but to the new liabilities which have been imposed “under this act.' This is the clear language of the statute itself in section 2 of the act, and we know of no rule of construction which justifies extending the operation of a statute for the purpose of working an injustice to one who has a legal wrong to be righted. See Dean v. M. E. R. Co., 119 N. Y. 540, 547, 23 N. E. 1054. “A construction of an act should be avoided which would injuriously affect the rights of others, and that sense should be attached to its provisions which will harmonize its objects with the preservation and enjoyment of all existing rights.” S. R. T. Co. v. Mayor, etc., of New York, 128 N. Y. 510, 523, 28 N. E. 525, 529. It may not be presumed that the Legislature in an act "to extend and regulate the liability of employers” intended to take away any of the rights or privileges secured to citizens of this state by the law of the land. See section 1, art. 1, Const. The general rule is that an intention to change the rule of the common law will not be presumed from doubtful statutory provisions. The presumption is that no such change is intended, unless the statute is explicit and clear in that direction. Jones v. City of Albany, 151 N. Y. 223, 226, 45 N. E. 557, and authorities there cited. As the plaintiff's cause of action and his remedy exist at common law, unless that right is clearly taken away by the provisions of the act in question, it should not be extended by the courts to work a wrong. To the extent that this statute creates a new right and regulates or creates a remedy for such new right, there is no doubt that the remedy or its regulation is exclusive (City of Rochester v. Campbell, 123 N. Y. 405, 414, 25 N. E. 937, 10 L. R. A. 393, 20 Am. St. Rep. 760), but the rule is of universal application that, where “a statute (or the common and 120 New York State Reporter law, which has the force of a statute until altered or repealed-section 16, art. 1, Const.) enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.” Willy v. Mulledy, 78 N. Y. 310, 314, 34 Am. Rep. 536, and authorities there cited; City of Rochester v. Campbell, supra. So, where a remedy existed at the common law for a wrong or injury against which a remedial statute is directed, if such statute provides a more enlarged or summary or more effcient remedy for the party aggrieved, but does not in terms or by necessary implication deprive him of the remedy which existed at common law, the statutory remedy is considered as merely cumulative, and the party injured may resort to either at his election. Clark v. Brown, 18 Wend. 213, 220. This doctrine is old as the common law, for Lord Coke lays down the proposition that a statute made in the affirmative, without any negative expressed or implied, does not take away the common law, and this rule is now elementary. Hardmann v. Bowen, 39 N. Y. 196, 198, and authorities there cited; Stafford v. Ingersol, 3 Hill, 38, 41; D. C. M. Ins. Co. v. Van Wagonen, 132 N. Y. 398, 401, 30 N. E. 971, and authorities there cited. In the Hardmann Case, supra, it is said:
"The rule bas sprung up under the decisions in regard to remedies, and all that is held is that, if the statute gives a new remedy, and is merely affirmative in its terms, without any negative, express or implied, it does not take away the common-law remedy."
It has been well said that it “is a familiar principle that statutes are to be construed in reference to the principles of the common law, for it is not to be presumed that the Legislature intended to make any innovation upon the common law, further than the case absolutely requires. 1 Kent's Com. [3d Ed.] 463. This has been the language of the courts in every age. It is said also that four things are to be considered in the interpretation of all statutes: (1) What was the common law before the act ? (2) What was the mischief against which the common law did not provide ? (3) What remedy has the Legislature provided to cure the defect? And (4) what was the true reason of that remedy?” White v. Wager, 32 Barb. 250, 261; Id., 25 N. Y. 328. Unquestionably the common law gives a remedy to an employé who is injured through the neglect of any duty which the master owes to the servant. That was the common law before the enactment of the statute now under consideration. The mischief against which the common law did not provide—if we may term it a mischief-was that it did not provide for damages for one who was injured through the negligence of a fellow servant unless that servant was in a position where he acted for and in the discharge of a duty owed by the master. To cure this supposed defect, the Legislature has extended the liability of the master, who must answer for an injury due to “the negligence of any person in the service of the employer intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence, or in the absence of such superintendent, of any person acting as superintendent with the authority or consent of such employer. The employé, or in case the injury results in death, the executor or administrator of a deceased employé who has left him surviving a husband, wife, or next of kin, shall have the same right of compensation and remedies against the employer as if the employé had not been an employé of nor in the service of the employer, nor engaged in his work." Section 1, c. 600, p. 1748, Laws 1902. And the true reason of that remedy was, we may infer, that the Legislature deemed it wise to "extend and regulate the liability of employers." And the same section provides : “The provisions of law relating to actions for causing death by negligence, so far as the same are consistent with this act, shall apply to an action brought by an executor or administrator of a deceased employé suing under the provisions of this act.” That is, the Legislature has given to employés a new cause of action—a cause of action which did not accrue at common law because of the negligence of a superintendent, unless he was discharging a duty which belonged to the master—and it has provided that such employé shall have the same "right of compensation and remedies” as though the relation of master and servant did not exist. In other words, facts and circumstances which did not heretofore constitute actionable negligence are, by the statute, placed upon the same footing with common-law actions for negligence, and the remedy provided for this new right, which must be exclusive (City of Rochester v. Campbell, supra), is made to depend upon the service of a notice giving the time, place, and cause of the injury to the employer within 120 days after the injury. Why should this limitation upon the remedy thus provided for a new cause of action be extended by construction to the remedy which exists at common law for the common-law cause of action for negligence? The man who stands upon his common-law rights, who goes into court prepared to establish a cause of action under the law of the land as it existed before and since the adoption of chapter 600, p. 1748, of the Laws of 1902, gets no benefit from the statute, and it comports with reason and natural justice that he should not be called upon to bear its burdens unless such a result is absolutely required by the statute, or by some controlling considerations of public policy plainly and unmistakably to be gathered from the language of the law. The plaintiff in this action sets forth a good cause of action at common law for injuries due to the negligence of a duty owed by the defendant to the plaintiff. The right in no wise depends upon the statute. It exists at common law, which the statute does not assume to change; and we are of opinion that, so long as the plaintiff relies upon his common-law right of action, he cannot, under the provisions of chapter 600, p. 1748, of the Laws of 1902, be compelled to give a notice as a condition precedent to his right to litigate the issues. That would be reading into the statute a regulation of a remedy for a cause of action not created by the statute, and for which there is no possible justification to be found within the limits of the act. This was clearly the view which was taken by the learned court in Veginan v. Morse, 160 Mass. 143, 35 N. E. 451, cited in Johnson v. Roach, 83 App. Div. 351, 356, 82 N. Y. Supp. 203, as authority for a contrary construction, for it clearly appears that there were three