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(161 N.E.)

of the Tax Law. The question is not here presented whether the Legislature might not amend its definition of a taxable special franchise so as to include all the rights conferred upon the bridge company. If the state taxed as a special franchise the rights granted by it to the bridge company, it would hardly be claimed that the right of the railroad company to operate a railroad on the bridge constituted another special franchise.

[6] By statute, the Legislature has fixed the conditions under which the bridge might be constructed and the purposes for which it might be used. The operation of the railroad over the bridge is in accordance with the authority granted by the state to the bridge company. From such operation the bridge company realizes some of the profits derived from the privilege created by the state. After the bridge was constructed upon the conditions fixed by the state, the bridge company, and not the state, could grant or withhold permission to use the bridge for railroad operation. The state did not and could not thereafter grant to another a special franchise which involved a use of the bridge. The state did not intrust to the bridge company power in its discretion to confer upon a railroad company the consent of the state to the operation of a railroad across the Niagara river. It conferred upon the bridge company the right to build the bridge and to grant the use of it for railroad purposes to a railroad corporation. The bridge company's privileges are derived from the state. It is entitled to the benefit from the authorized use of a public place. The railroad's rights are derived from grant of the bridge company upon stipulated payment to that company.

Though the state has consented to the use of the bridge for operation of a railroad, that consent is part of the privilege granted to the bridge company for the construction of a bridge to be used for that purpose. The railroad company has received no rights from the state except the right to exercise its corporate powers. Since it has received no permission from the state to operate a railroad over the Niagara river, its rights, derived from the bridge company by virtue of the privilege granted to the bridge company, constitute no special franchise.

The order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in the Appellate Division and in this court.

1

CRANE, J. I dissent. If the state had granted to the railroad directly consent to operate its road over the bridge and river it would have been a special franchise. The railroad cannot cross without such consent. The source of authority is the state. The

railroad has obtained such consent indirectly through the bridge company, and I can see no difference between the consent thus obtained and the consent directly given to the railroad by the state. The railroad runs over the river on a bridge by consent and authority of the state in either case. As it must pay a franchise tax in the one instance, why not in the other?

ANDREWS, J. (dissenting). A special franchise is defined as the franchise, right, or permission to construct, maintain, or operate a railroad above a public place. The Niagara river is such a public place. The relator maintains and operates a railroad above it.

Does it do so by reason of authority granted by the state where without such authority such action would be illegal? People ex rel. New York Cent. & H. R. R. Co. v. Priest, 206 N. Y. 274, 99 N. E. 547. Does it do so by public favor? People ex rel. New York Cent. R. Co. v. Woodbury, 203 N. Y. 167, 96 N. E. 431. If it does not, there is no special franchise. People ex rel. Hudson & M. R. Co. v. State Board of Tax Com'rs, 203 N. Y. 119, 96 N. E. 435; People ex rel. Long Island R. R. v. State Board of Tax Com'rs, 148 App. Div. 751, 133 N. Y. S. 348; affirmed on opinion below, 207 N. Y. 683, 101 N. E. 1117.

Chapter 104 of the Laws of 1846 incorporated the Niagara Falls International Bridge Company, authorized it to purchase or condemn necessary lands on this side of the boundary line and to build a tollbridge across the river for pedestrians and vehicles. A similar act was passed in Canada and the bridge has been built and operated for many years. Under the present definition of the statute, this did not confer a special franchise. It is not the right, the authority, or the permission specified in section 2 of the Tax Law.

By chapter 622 of the Laws of 1853, however, the corporation was empowered to contract with a railroad corporation with reference to terms upon which the latter might operate trains over the bridge. This statute impliedly authorized the bridge company to so construct the bridge as to be suitable for that purpose. In pursuance of this act, the corporation built an upper deck to accommodate engines and trains.

I do not think this act conferred a special franchise upon the bridge company. The words of the statute are permission to "construct, maintain or operate" railroads over a public place. Certainly the corporation was never authorized to operate a railroad itself across the river. Probably it might lay rails on the structure. That may be implied from the fact that is was to build a railroad bridge. But I do not think the mere placing of rails

thereon comes fairly within the meaning of the phrase "construct **

(248 N. Y. 107)

* railroads." CLARK v. MONARCH ENGINEERING CO.

It never, therefore, itself obtained a special franchise, but it might grant the right to maintain and operate railroads across the bridge to others. It did so in October, 1853. It then leased to the Great Western Company of Canada the upper deck for the passage of trains and locomotives. The relator stands in the place of the original lessee.

As an original proposition, the relator might not have constructed and operated a railroad bridge across the Niagara river without permission from the state. Had such permission been granted to it, there would be a special franchise-permission to construct and operate a railroad above a public place. People ex rel. Harlem River & P. C. R. Co. v. State Board of Tax Com'rs, 215 N. Y. 507, 109 N. E. 569, L. R. A. 1916B, 1222. It seems to me that this is precisely what the act of 1853 did by implication. It said: "You may lease to some railroad and give it permission to operate its trains over your bridge. The lease will evidence our consent that it may do so." Consent of the state was required. It need not be express. It is no defense where a railroad crosses a highway that consent has never in fact been given.

I have said consent of the state is required. It is even more requisite here than in the ordinary case where the state is practically a trustee for the public. Here its proprietary rights are also involved. If not given, not only does the structure constitute a continuing trespass, but every person crossing the river upon it would be a trespasser.

It seems to me that, unless the state has granted permission to the relator to maintain and operate a railroad over a public place, the only alternative is to hold that it has granted such permission to the bridge company, and that the latter is exercising such rights through its lessee as agent. holding, would not accord with the facts. Some one has permission from the state. Who? I think the relator.

Such a

That its right may be terminated for nonpayment of rent, that the method of its operation is controlled by the lease, both facts seem to me immaterial. Meanwhile it does operate a railroad over a public place by consent.

I think that the judgment of the court below was right and should be affirmed.

CARDOZO, C. J., and POUND and KEL LOGG, JJ., concur with LEHMAN, J. CRANE and ANDREWS, JJ., dissent in opinions, in which O'BRIEN, J., concurs.

Ordered accordingly.

Court of Appeals of New York. May 1, 1928.

1. Master and servant 346-Employer who has secured compensation as provided by statute is not subject to other liability (Workmen's Compensation Law, §§ 10, 11).

An employer who has secured compensation for employees, as provided by Workmen's Compensation Law (Consol. Laws, c. 67), § 10, or section 11, is not subject to any other liability.

2. Master and servant 367-Statute leaves liability to secure and provide compensation to injured employee or dependents primarily on subcontractor employing him (Workmen's Compensation Law, §§ 10, 56).

Workmen's Compensation Law (Consol. Laws, c. 67), § 56, leaves liability to secure and pay or provide compensation to an injured employee or his dependents primarily on the subcontractor who employed him, as originally provided by section 10. 3. Master and servant

367-Secondary lia

bility of general contractor is not exclusive 80 as to destroy employee's common-law right of action for negligence or wrong (Workmen's Compensation Law, § 56).

The new and secondary liability imposed on a general contractor by Workmen's Compensasubcontractor fails to meet his liability, is not tion Law (Consol. Laws, c. 67), § 56, where exclusive so as to destroy any common-law right of action for negligence or wrong which might otherwise exist.

4. Master and servant 367-General contractor is under no statutory liability to employee, where subcontractor has secured compensation for employees (Workmen's Compensation Law, §§ 10, 56).

Where the subcontractor has secured compensation for his employees, a general contractor is under no statutory liability, such as is imposed by Workmen's Compensation Law (Consol. Laws, c. 67), §§ 10, 56, having no application in such a case.

5. Master and servant 367-General contractor, asserting relief from common-law liability to employee because of statutory liability imposed, should plead and prove it (Workmen's Compensation Law, §§ 10, 56).

Where the general contractor asserts that he is relieved of a common-law liability because the statutes, such as Workmen's Compensation Law (Consol. Laws, c. 67), §§ 10 and 56, have imposed on him a new liability in its place, he should plead and prove that he is in fact under the statutory liability.

6. Master and servant 367-Statute does not provide exemption to general contractor from common-law liability to employee of subcontractor, where no statutory liability is shown to have arisen (Workmen's Compensation Law, § 56).

Workmen's Compensation Law (Consol. Laws, c. 67), § 56, held not to manifest legislative intention to provide exemption to the gen

(161 N.E.)

eral contractor from his common-law liability to employee of subcontractor for damages caused by contractor's Own negligence or wrong, in view (f sections 10, 11, where no new statutory liability on his part is shown to have arisen.

an employer who has secured compensation is not subject to any other liability.

There can be no doubt that, when these sections were enacted, "an employer subject to this chapter" included only a general or special "employer," as that term is generally understood and defined in our law. A con

Appeal from Supreme Court, Appellate Di- tractual relation with the employee is invision, Fourth Department.

Action by Lena Clark, as administratrix of the personal estate of Frederick E. Clark, deceased, against the Monarch Engineering Company. A judgment for plaintiff and an order denying defendant's motion for a new trial, made on the judge's minutes after verdict for plaintiff (129 Misc. Rep. 145, 221 N. Y. S. 93), were affirmed by the Appellate Division (222 App. Div. 713, 224 N. Y. S. 773), and defendant appeals. Affirmed.

George P. Keating, Ray M. Stanley and Seward H. Millener, all of Buffalo, for appel

lant.

Karl A. McCormick and Frederick G. Bagley, both of Buffalo, for respondent.

LEHMAN, J. The plaintiff has recovered a judgment against the defendant for damages resulting from the death of plaintiff's husband caused by the alleged negligence of the defendant. At the time of the accident the plaintiff's husband was performing work, as an employee of a subcontractor, in the construction of a building. The defendant was the general contractor. Upon this appeal the defendant directs its attack upon the judgment on the ground that the liability imposed upon a general contractor under section 56 of the Workmen's Compensation Law (Consol. Laws, c. 67) is "exclusive and in place of any other liability whatsoever." Workmen's Compensation Law, § 11.

[1] Section 10 of the Workmen's Compensation Law provides:

"Liability for Compensation. Every employer subject to this chapter shall * * * secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment.

* *

Section 11 provides:

"Alternative Remedy. The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever.

volved. Here the workman who sustained injury resulting in his death was employed by a subcontractor. It is not claimed that the general contractor either hired or had the right to direct him. Concededly, section 10 of the Workmen's Compensation Law imposed no obligation or liability upon a general contractor in favor of the employees of a subcontractor.

Section 56 of the Workmen's Compensation Law, enacted in 1922, did impose a liability theretofore unknown in our law upon a general contractor. That section provides:

"Subcontractors. A contractor, the subject of whose contract is, involves or includes a hazardous employment, who subcontracts all or any part of such contract shall be liable for and shall pay compensation to any employee injured whose injury arises out of and in the course of such hazardous employment, unless the subcontractor primarily liable therefor has secured compensation for such employee so injured as provided in this chapter."

[2, 3] That section still leaves liability to secure and pay or provide compensation to an injured employee or his dependents primarily upon the subcontractor who employed him. It places, however, a secondary liability to pay compensation upon the general contractor, unless the subcontractor has fully met his primary liability. The defendant maintains that this new and secondary liability of the general contractor is exclusive, and destroys any common-law right of action for negligence or wrong which might other

wise exist.

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* *

If the Legislature intended that such secondary liability should be exclusive, it has not expressed that intent, as it might have done, in clear terms. We are asked to apply the provisions of section 11 of the Workmen's Compensation Law to the new liability created by section 56 of the law, though in terms section 11 applies only to "the liability prescribed by the last preceding section." Arguments in favor of such an extension of the provisions of section 11 of the Workmen's Compensation Law are not without some force. Other states have enacted workmen's compensation laws which, like He our own, impose some liability on a general contractor for injuries to the employees of subcontractors. In some jurisdictions the courts have held that the liability imposed by statute upon the general contractor is ex

By force of these provisions a twofold liability was imposed upon an employer subject to the Workmen's Compensation Law. must "secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment." Such

clusive and in place of any common-law liability for wrong or negligence. State v. Ben nett Building Co. (Md.) 140 A. 52, not yet [officially] reported; Bindbeutel v. Willcut & Sons Co., 244 Mass. 195, 138 N. E. 239. The courts in other jurisdictions have not always reached the same conclusion. Trumbull Cliffs Furnace Co. v. Schachovsky, 111 Ohio St. 791, 146 N. E. 306; Cermak v. Milwaukee A. P. P. Co., 192 Wis. 44, 211 N. W. 354. We do not analyze these decisions, for in each case the decision arrived at must finally depend upon the construction which the courts place upon the language of the particu lar statute or clause of the Constitution un der consideration, and the statutes and Constitutions of other states are not identical with our own.

[4] The question before us is indeed narrower than that which counsel in this case have argued. The liability imposed by section 10 upon every "employer" is primary and absolute. The liability imposed upon a general contractor is secondary and contingent. Where the subcontractor has secured compensation for his employees, a general contractor is under no statutory liability. Section 56 has no application in such case. Here there is neither plea nor proof by the defendant that the subcontractor failed to secure compensation. The question before us is not whether a general contractor who is under a liability to pay statutory compensation to an "employee," because the subcontractor primarily liable therefor has failed to secure compensation, is also subject to common-law liability for negligence or wrong. The question is whether the common-law liability no longer exists, even though it does not appear that the general contractor in this particular case is under any statutory liability. We consider at this time no other question.

[5, 6] It is true that, the language of section 56 may indicate that, when claim to compensation is asserted by an employee against a general contractor, the burden of showing that the subcontractor primarily liable had secured compensation is thrown upon the general contractor. Monello v. Klein, 216 App. Div. 105, 214 N. Y. S. 486; Casey v. Shane, 221 App. Div. 660, 225 N. Y. S. 126. We do not pass upon such question now. Where, however, the general contractor asserts that he is relieved of a common-law liability because the statute has imposed upon him a new liability in its place and stead, he should at least plead and prove that he is in fact under the statutory liability. Trumbull Cliffs Furnace Co. v. Schachovsky, supra; Cermak v. Milwaukee A. P. P. Co., supra. Caution may dictate to a general contractor that he should insure himself against

a contingency that, by reason of the failure of the subcontractor to secure compensation, liability against the general contractor may arise; yet, until that contingency arises, the general contractor is under no statutory liability to an employee of the subcontractor. He must respond only for damages caused by his own negligence or wrong. It seems to us quite clear that the Legislature did not intend to provide exemption to the general contractor from common-law liability, at least where no statutory liability is shown to have arisen. We do not decide whether a statutory liability, when it arises, may exist contemporaneously with a common-law lia

bility.

The judgment should be affirmed, with costs.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, KELLOGG, and O'BRIEN, JJ., concur.

Judgment affirmed.

(248 N. Y. 112)

FARRINGTON v. STATE.

Court of Appeals of New York. May 1, 1928. 1. States 119-Legislature may provide for audit and allowance of private claims against state by Court of Claims in certain instances (Const. art. 8, § 9).

While the Legislature may not sanction a mere gift of public moneys for private purposes under Const. art. 8, § 9, it may, in certain instances, acknowledge the justice of private claims against the state and provide for their audit and allowance by the Court of Claims.

2. Constitutional law 70(1)-Propriety of Legislature's action with power in reference to particular claim against state is not reviewable by court.

If the Legislature act with power in providing for the audit and allowance of a particular claim against the state by the Court of Claims, the propriety of its action is not subject to court review.

3. States 119-Legislature cannot bestow charity under cloak of recognizing and satisfy. ing debt of honor (Const. art. 8, § 9).

The Legislature may not under the cloak of recognizing and satisfying a debt of honor, by authorizing the audit and allowance of a private claim against the state, in fact bestow a charity, contrary to Const. art. 8, § 9.

4. States 119-Act sanctioning allowance of private claim against state is unconstitutional, unless Legislature may reasonably say that claim is equitable and just, and involves moral obligation (Const. art. 8, § 9).

An enactment sanctioning allowance of a private claim against the state is contrary to

(161 N.E.)

Const. art. 8, § 9, as sanctioning a gift of public moneys for private purposes, unless claim is of class which the Legislature, in exercise of a wide discretion, might reasonably say is founded in equity and justice and involves a moral obligation of the state.

5. States

119-Legislature may authorize allowance of private claims for benefits enjoyed by state without recompense or injuries inflicted by persons for whose acts state is responsible (Const. art. 8, § 9).

The Legislature, without violating Const. art. 8, 9, may authorize allowance of such private claims against the state as involve benefits, conferred by private persons, which the state has continued to enjoy without return of quid pro quo, or injuries and damages wrongfully inflicted on individuals by persons in the state's service or others for whose acts the state may justly be regarded as responsible.

6. States 119-That wrong to servant of state by officer thereof does not involve physical violence, nor authorize recovery of damages from private employer, is immaterial on question of Legislature's right to authorize allowance of claim (Const. art. 8, § 9).

That a legal wrong, inflicted by a state officer on a public servant of the state, did not involve physical violence, or that damage may not be recoverable in a suit at law against an employer occupying a similar relation to the parties as the state is immaterial on the question of the Legislature's right to authorize allowance of a claim therefor without violating Const. art. 8, § 9.

7. States

191(1)-Special enactments authorizing allowance of legal private claims against state are not required to remove state's immunity from suit (Code Civ. Proc. § 264 [Court of Claims Act, § 12]).

Special enactments authorizing allowance of private claims against the state are not required for purpose of removing the state's immunity from suit in view of Code Civ. Proc. § 264 (Court of Claims Act, § 12), establishing a universal waiver of such immunity in all cases prosecuted before the Court of Claims, unless the liability sought to be enforced is extralegal. 8. States 119-Legislature could authorize allowance of claim for legal expenses in procuring reinstatement of illegally discharged state civil service employee (Civil Service Law, § 22-a, added by Laws 1920, c. 836, amended by Laws 1923, c. 875, and repealed by Laws 1926, c. 685, § 4; Const. art. 8, § 9: Laws 1927, c. 716).

State comptroller, being guilty of clear violation of Civil Service Law (Consol. Laws, c. 7), § 22-a, as added by Laws 1920, c. 836, and amended by Laws 1923, c. 875, before its repeal by Laws 1926, c. 685, § 4, in discharging the third in order of appointment of five detective agents in comptroller's office when Legislature appropriated moneys sufficient to pay for services of only three, Legislature had power, without violating Const. art. 8, § 9, to declare the state morally obligated to reimburse such ap

pointee for financial loss occasioned by mandamus proceedings for his reinstatement and to authorize Court of Claims to audit and allow claim therefor, as provided by Laws 1927, c. 716.

Appeal from Court of Claims.

Claim by Edgar C. Farrington against the State. From a judgment of the Court of Claims awarding claimant the amount of his claim, defendant appeals. Affirmed.

Albert Ottinger, Atty. Gen. (Frederick D. Colson, Deputy Atty. Gen., of counsel), for the People.

Glenn A. Frank, of Albany, for respondent.

KELLOGG, J. The claimant was one of five persons who held positions as detective agents in the office of the comptroller of the state. The positions were in the competitive class of the civil service. In the year 1923 the Legislature appropriated moneys to pay for the services of not more than three of such agents. It therefore became necessary for the comptroller to abolish two of the positions. It was then the law that, whenever a position in the competitive class of the civil service was abolished, the occupant should be suspended without pay, and that such suspension should be made in the inverse order of the original appointments to the. service. Civil Service Law (Cons. Laws, c. 7), § 22-a, added by chapter 836, Laws of 1920, amended by chapter 875, Laws of 1923, and repealed by chapter 685, § 4, Laws of 1926. Of the five detective agents, the claimant was the third in order of appointment. Nevertheless the comptroller notified the claimant that his position was abolished, and that his services were no longer required. Thereafter the claimant instituted mandamus proceedings and procured his reinstatement, as well as all arrears of salary owing him for the period of his apparent suspension. For counsel fees and disbursements in the legal proceedings made necessary by the unlawful act of the comptroller, the claimant expended the sum of $1,055. Thereafter the Legislature passed an act conferring jurisdiction upon the Court of Claims to hear and determine claimant's claim to recover the moneys thus expended. Laws of 1927, c. 716. The act provided that

"If the court shall find that the said Edgar C. Farrington was lawfully appointed to and held the position of detective agent in the office of the comptroller of the state of New York, and was illegally dismissed or removed from that position to which he was reinstated by an action at law, the state of New York shall be deemed liable for his counsel fees, expenses and disbursements made and incurred in securing such reinstatement" and that, in such event,

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