text:
    In the Matter of the Claim of Eugene Bellini, Respondent, against Great American Indemnity Company, Appellant, and Architectural Home Corp. et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted April 4, 1949;
    decided July 19, 1949.

      Jeremiah F. Connor for appellant.
    I. Assuming, without admitting, that claimant was an employee of Architectural Home Corporation, the award appealed from should have been made against the Special Fund for Beopened Cases under section 25-a of the Workmen’s Compensation Law. (Matter of Rahman v. Bethel, 236 App. Div. 182; Stuts v. Guardian Cab Corp., 273 App. Div. 4; Matter of Riddle v. General Ice Cream Corp., 262 App. Div. 353.) II. The claim is barred because of the suit commenced by claimant against Architectural Home Corporation to recover damages for his injuries. (Matter of Russell v. 231 Lexington Ave. Corp., 266 N. Y. 391.) III. Claimant was an employee of Castro.

      Nathaniel L. Goldstein, Attorney-General (Theodore M. Schwarts, Wendell P. Brotvn and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    I. The award discharging from liability the Fund for Reopened Cases under section 25-a of the Workmen’s Compensation Law was proper. The seven- and three-year limitations of time provided under section 25-a were tolled during the time while the case was on appeal and also by virtue of the Military Law. (Matter of Riddle v. General Ice Cream Corp., 262 App. Div. 353; Matter of Sturesky v. Straussman, 273 App. Div. 1036.) II. The mere commencement of a common-law action by claimant against Architectural Home Corporation does not bar a compensation award against it as an employer. III. Claimant was an employee of Architectural Home Corporation and was covered by the policy of insurance issued to the corporation. (Matter of Bollard v. Engel, 278 N. Y. 463; Matter of Strawway v. Stickler, 268 App. Div. 944; Matter of Enright v. Asplundh Tree Expert Co., 271 App. Div. 847, 297 N. Y. 452; Matter of Romeo v. Holley Canning Co., 272 App. Div. 1092; Matter of Smothers v. D. & M. Pharmacy, 271 App. Div. 760; Matter of Straus v. Goldstein & Bros., 264 N. Y. 498; Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60; Matter of Greco v. Queenside Hills Realty Co., 266 App. Div. 704.)
   Dye, J.

Broadly, the question presented on this appeal by permission, is whether the tolling of limitations of time for suit by or against any person in military service (Military Law, §§ 304, 308; L. 1941, ch. 686, eff. April 23,1941) is available as a defense to a third party or, to state it more precisely, whether the statutory time limitation of “ seven years from the date of the injury * * * and * * * three years from the date of the last payment of compensation ” (Workmen’s Compensation Law, § 25-a) may be diminished in favor of the Special Fund for Reopened Cases by the time the alleged employer, subsequently released from liability for the original award, is absent in military service.

The claimant, Bellini, sustained accidental injuries November 1, 1938, while working as a plasterer’s helper in the course of work on a house being built by Architectural Home Corp. as owner. Its carrier, the appellant here, paid compensation to claimant for the period from November 3, 1938, to February 6, 1939, when payments were discontinued, it being claimed that Anthony Castro, an independent contractor, was the employer. On May 11, 1939, Castro, on controverted proof, was found to be the employer and the case continued leading to an award of 65% permanent loss of use of left foot, a schedule loss (Workmen’s Compensation Law, § 35, subd. 3.) The case was closed January 19,1941. While the compensation claim was pending against Castro, who was uninsured and could not pay the award, a third party suit was brought by claimant against Architecutral Home Corp. This was voluntarily discontinued January 9, 1941. The compensation award against Castro was under review and was confirmed June 10, 1941. Castro’s appeal to the Appellate Division from the award under date of January 11, 1940, was later dismissed on January 10, 1946, for failure to prosecute. Architectural Home Corp. and its carrier, Great American Indemnity Company, were not parties. Castro was inducted into the Army of the United States, January 22, 1941, and continued therein until his honorable discharge December 10, 1944. Thereafter on the date of March 14, 1946, he made application to have the compensation case reopened on the ground of newly discovered evidence showing he was not the employer. The claimant, Bellini, also applied to reopen, claiming additional compensation for protracted healing period. When the application to reopen was granted August 9, 1946, the Special Fund for Reopened Cases was put on notice because there had been “ a lapse of seven years from the date of the injury * * * and * * * three years from the date of the last payment of compensation ” (Workmen’s Compensation Law, § 25-a). It claimed such statutory time should he diminished by the period Castro was in the military service (Military Law, § 308). The hoard, after hearing additional testimony on the question of employment, rescinded its former determination that Castro was the employer and relieved both him and the special fund from liability and in place thereof made a schedule award for loss of use of left foot plus an additional amount for protracted healing-period less a credit for fifteen weeks ’ payments theretofore made by it against the Great American Indemnity Company, the appellant here, as carrier of Architectural Home Corp. The case was then closed.

The Great American Indemnity Company as carrier of Architectural Home Corp. then took an appeal from such determination which has been affirmed by the Appellate Division (Third Department). The failure of the employer to join in such appeal in no way prejudices the rights of the carrier as an appellant (Workmen’s Compensation Law, §§ 23, 54, subd. 2; Matter of Jaabeck v. Crane’s Sons Co., 238 N. Y. 314), The issue of employment being one of fact and there being sufficient evidence to sustain such finding, it is beyond our reach (Workmen’s Compensation Law, § 20; Matter of Enright v. Asplundh Tree Expert Co., 271 App. Div. 847, affd. 297 N. Y. 452). Nor does the fact that the claimant brought a third party suit against Architectural Home Corp., later found to be the employer, bar his claim for compensation (Matter of Russell v. 231 Lexington Ave. Corp., 266 N. Y. 391). The controversy here is solely between the appellant carrier and the special fund as to which of them shall pay the award, the happening of the accident and the injuries sustained not now being questioned. Its solution depends on whether the statutory time limit for holding the carrier liable for an award in a reopened claim (Workmen’s Compensation Law, §§ 25-a, 123) is tolled by the Military Law which provides so far as pertinent, viz.:

“ § 308. Statutes of limitations; time of military service not included. The period of military service shall not be included in computing any period now or hereafter to be limited by any law for the bringing of any action by or against any person in military service ”, (Emphasis supplied.)

This plain language clearly indicates an intention to confine. its limitation for -the bringing of suits by or against any person in military service ” to the person actually in the armed services. It is personal in nature and cannot be extended to relieve, or protect a third person from the operation of the limiting statute (Stuts v. Guardian Cab Corp., 273 App. Div. 4).

Castro as a plaintiff, or a person bringing suit against him as a defendant, may claim the protection and benefit of its provisions. Such is not the situation here. The special fund is a third party and cannot qualify. Nor may the special fund be relieved on the theory that the claimant is prejudiced because an award against it “ shall not be retroactive for a period of disability * * * longer than the two years immediately preceding the date of filing ’ ’ of the application to reopen (Workmen’s Compensation Law, § 25-a, subd. 1). This provision as we read it, establishes a time limitation on the retroactive liability of the special fund for a temporary total disability (§ 15, subd. 2). The award here is based on a permanent partial disability of the left foot (§ 15, subd. 3) for which a schedule award of 65% loss of use has been made. This award is not dependent on the number of weeks claimant was temporarily unable to work but on the extent of the permanent disability shown to have been sustained to the injured member. The loss of a member or the permanent percentage loss of use thereof is the determining factor in computing the amount of such award. When claimant has suffered such loss of a member he is entitled to a schedule award even though he suffers no loss of time or earning capacity by reason of the injury. Keeping in mind the distinct character of the award made herein there is neither authority nor principle for applying the two-year retroactive time limitation in favor of the special fund to the claimant’s prejudice. The only temporary period of disability considered was for the protracted healing period which constituted claimant’s basis for his application to reopen. This the board found amounted to twenty-five and one-half weeks and, being for less than the two-year limitation, presents no problem.

It cannot be said that claimant is prejudiced in any event but assuming arguendo, that the retroactive time limitation is applicable on either phase of the case, the prejudice resulting to the claimant cannot serve to create a liability against the carrier in whose favor the Statute of Limitations has run and which it has not waived or forfeited by subsequent conduct. No such waiver of the .statute or acknowledgment of liability has been established here. For more than six years prior to the reopening and for more than seven years after the accident, the carrier was lulled into security by the repeated rulings and decisions of the board that its insured was not the true employer. The circumstance that the claimant made his claim against Castro, a person in the military service, does not change the situation so far as this appellant is concerned if reliance thereon depended upon the ruling of the board in the premises. The case of Matter of Sturesky v. Straussman (273 App. Div. 1036, motion for leave to appeal denied 298 N. Y. 937), relied on by the board to sustain its own ruling, is not in point since there it was the claimant who was invoking the protection of the Military Law and had it not been available he would have been prejudiced. The distinction is self-evident. It should also be noted that the ruling depended in part upon the circumstance that the claim had not been closed but was continued without prejudice to a reopening until after the claimant should have returned from military service.

The further contention of the board that the statutory time limitation of section 25-a should be diminished by the time during which Castro’s appeal was pending is without merit (§§ 25-a, subd. 8; 23). Neither the employer, Architectural Home Corp., nor its carrier, Great American Indemnity Company, the appellant herein, were parties to the Castro appeal nor were .they concerned with it. They had been excused and released from liability by the ruling that Castro was the employer. Under these circumstances the carrier may not now be penalized by a reversal by the board of its previous ruling .on the merits after the running of the statutory time limit. The statute, in clear and understandable language, releases a carrier from continuing liability after a lapse of seven years (Workmen’s Compensation Law, §§ 25-a, 123). The statute also provides that pendency of an appeal has the effect of diminishing the statutory period for reopening of claims but nowhere does it provide that the time an appeal is pending extends to the merits of the issue, so as to create liability not otherwise existing.

The order of the Appellate Division should be reversed, the award annulled, and the matter remitted to the Workmen’s Compensation Board in accordance with the opinion herein, with costs to the appellant against the Workmen’s Compensation Board.

Lotjghran, Ch. J., Lewis, Conway, Desmond, Fuld and Bromley, JJ., concur.

Order reversed, etc.


source: Caselaw Access Project

author: Dye, J. Fuld, J.

license: Public Domain

text:
    In the Matter of the Claim of James Champion, Respondent, against W. & L. E. Gurley et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued June 3, 1949;
    decided July 19, 1949.

      Herbert F. Hastings, Jr., and Florence G. Mam% for appellants.
    There is no basis for the finding that claimant contracted an occupational disease within the meaning of paragraph 29 (formerly 28) of section 3 of the Workmen’s Compensation Law. (Matter of Goldberg v. 954 Marcy Corp., 276 N. Y. 313; Matter of Harman v. Republic Aviation Corp., 298 N. Y. 285.)

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    The evidence is overwhelming that claimant contracted an occupational disease in his employment. (Matter of Peloso v. D’Alessio Bros., 298 N. Y. 582; Matter of Nayor v. Harwick Trucking Corp., 283 N. Y. 62; Matter of Foster v. Gillinder Bros., 278 N. Y. 348; Matter of Wolfe v. Brohman, 285 N. Y. 635; Matter of Moore v. Colonial Sand & Stone Co., 261 App. Div. 857; Matter of Eckstein v. Loew’s, Inc., 295 N. Y. 672; Matter of Fanore v. Mary Immaculate Hosp., 285 N. Y. 631; Matter of Mason v. Y. W. C. A. of City of N. Y., 271 App. Div. 1042, 297 N. Y. 1037; Matter of Webster v. St. Joseph Lead Co., 264 App. Div. 800; Matter of Huffman v. Cast Traffic Sign Corp., 258 App. Div. 1013.)
   Dye, J.

Coverage for occupational diseases within the meaning of subdivision 2 of section 3 of the Workmen’s Compensation Law (L. 1920, ch. 538)., as we have recently said, is not as broad or inclusive as coverage for accidental injuries (Matter of Harman v. Republic Aviation Corp., 298 N. Y. 285). The statute lists many such diseases by name; there are many others however not so listed and when such are contracted may be considered under the omnibus clause any and all occupational diseases ” (Workmen’s Compensation Law, § 3, subd. 2, par. 28). The statute generally defines occupational diseases as “ due to the nature of the corresponding employment as described in such subdivision in which such employee was engaged and was contracted therein ” (Workmen’s Compensation Law, § 3, subd. 2; § 39) which mean those conditions to which all employees of a class are subject and which produce the disease as a natural incident of a particular occupation as distinguished from and exceeding the hazard and risks of ordinary employment (Matter of Goldberg v. 954 Marcy Corp., 276 N. Y. 313) and which we have restated with particularity as requiring “ a recognizable link between the disease and some distinctive feature of the claimant’s job, common to all jobs of that sort ” in reversing an award for disability based on tuberculosis as an occupational disease contracted by claimant from contact with a fellow bench worker (Matter of Harman v. Republic Aviation Corp., supra, p. 288). Here the board found that the thrombophlebitis suffered by claimant was an occupational disease resulting “ from the nature and conditions of his employment to which all employees of his class were subject, and was not brought about by the failure of the employer to furnish a safe place to work ’ ’, that it “ was a natural incident of his employment and occupation, and attached thereto a hazard which distinguished it from the usual run of occupations and was in excess of the hazard attending employment in general. ’ ’ While carefully following the wording of the judicial definition (see opinion, Matter of Goldberg v. 954 Marcy Corp., supra) such finding may not be sustained on this record. Here the onset of the disease followed jumping down from a raised platform on which claimant’s desk was temporarily located for a period of four to six weeks. This exposure to thrombophlebitis as an occupational disease, if indeed it be such, was like the exposure of the claimant to the tuberculosis suffered by a fellow bench worker in the Harman case (supra) and was not a natural incident of the occupation of inspector of surveying instruments nor can it be deemed a condition to which all instrument inspectors were commonly exposed by reason of that particular occupation. The incident described as responsible for the onset of the disease was limited to the claimant’s personal, individual situation due to the temporary location of his desk on a platform. Thrombophlebitis is not a natural, common, incidental, normally to be expected, disease unavoidably resulting from the occupation of instrument inspector. It is, without going into the extensive medical description contained in the record, a disorder of the circulatory system which may come from natural causes or may result from a traumatic origin such as a strain incident to jumping, as we have here. The medical testimony affords causal connection, but this of itself does not supply proof adequate to establish the thrombophlebitis suffered by the claimant here as an occupational disease within the accepted definition of its meaning (Matter of Goldberg v. 954 Marcy Corp., supra; Matter, of Harman v. Republic Aviation Corp., supra, and cases cited therein; cf. Matter of Peloso v. D’Alessio Bros., 298 N. Y. 582; Nayor v. Harwick Trucking Corp., 283 N. Y. 62; Matter of Foster v. Gillinder Bros., 278 N. Y. 348; Matter of Wolfe v. Brohman, 285 N. Y. 635). It is proof of the underlying elements that opens the way for a finding of ultimate fact. Lacking such proof, a finding of ultimate fact even though affirmed, may not be approved and a determination based thereon must he annulled.

The order of the Appellate Division should be reversed, without costs,, the determination of the Workmen’s Compensation Board annulled, and the claim remitted to the board for further proceedings not inconsistent with the opinion herein.

Fuld, J.

(dissenting). I agree that the evidence fails to spell out an occupational disease, and, since there is no basis for a finding that the disability was the result of an accidental injury, I favor dismissal of the claim rather than a remission to the board.

The rule enunciated by this court in Matter of Lerner v. Rump Bros. (241 N. Y. 153, 155) makes it plain that, for a disease to be classed as an accidental injury, it must be assignable ” not only to a determinate or single act, identified in space or time,” hut also “ to something catastrophic or extraordinary.” (See, also, Matter of Woodruff v. Howes Constr. Co., 228 N. Y. 276, 278.) Claimant’s disability possesses neither of those characteristics.

With both occupational disease and accidental injury eliminated as possible predicates for an award of compensation, there is no purpose to be served by remitting the matter to the board. The order should he reversed and the claim dismissed.

Lewis, Conway and Desmond, JJ., concur with Dye, J.; Fuld, J., dissents in opinion in which Loughran, Ch. J., and Bromley, J., concur.

Order reversed, etc.


author: Lewis, J.

text:
    New York State Bridge Authority, Respondent, v. Frank C. Moore, as Comptroller of the State of New York, Appellant.
    Argued April 14, 1949;
    decided July 19, 1949.

      Nathaniel L. Goldstein, Attorney-General (Kent H. Brown and Wendell P. Brown of counsel), for appellant.
    The expense incurred by the State in acquiring the money to finance the original construction of the Mid-Hudson Bridge is an integral part of its “ entire investment ” for that purpose.

      Lewis L. Delafiéld and Barent L. Visscher for respondent.
    I. The statute provides that the State’s claim shall consist of its “ entire investment for original construction.” Money paid by the State for interest is not part of its investment and a fortiori interest is not part of the State’s “ investment for original construction.” II. The computation of the claim of the State should follow the statutory provisions, and when so set up shows that the claim of the State should not include interest on State bonds. III. The Comptroller has inflated the State’s claim by the inclusion of interest in a manner which detrimentally affects the Hudson River Valley and the entire State and which could not have been intended by the Legislature.
   Lewis, J.

This is a submitted controversy. (Civ. Prac. Act, §§ 546-548.) The appeal is by the Comptroller of the State of New York from a judgment entered upon a nonunanimous order of the Appellate Division in favor of the plaintiff.

The plaintiff, New York State Bridge Authority — to which it will be convenient to refer as the Authority — is “ a body corporate and politic ” organized under the Public Authorities Law, article 3, title 2, section 527. By that statute the Authority is charged with the duty of maintaining, reconstructing and operating the Mid-Hudson Bridge at Poughkeepsie, which bridge was built by the State (L. 1923, ch. 900, as amd.). The Authority also maintains and operates the Rip Van Winkle Br-idge at Catskill (id. § 528, subd. 6), the Bear Mountain Bridge (id. § 528, subd. 6-a), the Edngston-Rhinecliff Ferry (id. § 528-a) and is directed to construct and operate a bridge to span the Hudson River between Kingston and Rhineeliff if it shall be found by the Authority and the Superintendent of Public Works that such action is in the public interest (§ 528, subd. 6-c id., as added by L.,1947, ch. 189, § 8).

The present appeal by the State Comptroller presents a question of statutory interpretation arising out of the financing of the original construction of the Mid-Hudson Bridge — a State project which was opened to the public in August, 1930. (L. 1923, ch. 900, as amd. by L. 1924, ch. 79, and L. 1925, ch. 13.) From that date the bridge was operated under the direction of the State Superintendent of Public Works until March 17, 1933, when chapter 67 of the Laws of 1933 took effect and the Authority, as an independent body, took over its operation and maintenance.

In order to finance the original construction of the Mid-Hudson Bridge, and the reimbursement of the Counties of Ulster and Dutchess for the cost of acquiring land and easements needed for bridge abutments and approaches, the Legislature authorized the expenditure of funds from various sources, including the State’s general funds and the proceeds of State bonds to be amortized by tolls collected from users of the structure. (L. 1924, ch. 79, § 1.) Thereafter, by chapter 17 of the Laws of 1926, the sum of $2,200,000, derived from the proceeds of bonds thereby authorized, was appropriated to the construction of the bridge, which bonds were to mature in equal annual amounts over a period of twenty-five years, and to bear interest at 4% annually. The total interest cost to the date of maturity of that first bond issue is $1,099,670. A second issue of State bonds of like terms was authorized by chapter 2 of the Laws of 1927, in the amount of $4,000,000 of which amount $2,953,083.73 was expended to complete the construction of the bridge. The total interest cost to maturity on the amount appropriated from the two bond issues mentioned above is $2,517,070.46.

Under chapter 900 of the Laws of 1923, and its successive amendments, the Commissioner of Highways — later the Superintendent of Public Works — was directed to charge tolls for the use of the bridge, the proceeds to be applied to reimburse the “ entire investment of the state for original construction” (emphasis supplied) and the cost to the Counties of Ulster and Dutchess for the acquisition of necessary land and easements, and to the maintenance and operation of the bridge. After the completion of such reimbursement, the bridge is to be maintained free of tolls for public use.

When the plaintiff Authority was first created within the Department of Public Works (L. 1932, ch. 548) it was authorized to issue bonds in its own name, and to apply the proceeds (1) for the reimbursement of Ulster and Dutchess for moneys expended in connection with the building of the Mid-Hudson Bridge as above mentioned and (2) for the construction of the Rip Van Winkle Bridge at Catskill. These bonds were to be secured by a first lien on tolls and other revenues from both bridges — the claim of the State for its investment for the original construction of the Mid-Hudson Bridge being made subordinate to that hen, to be paid after the retirement of the Authority’s bonds (id. §§ 3, 10). By the enactment of chapter 67 of the Laws of 1933, the existence of the Authority was continued until December 31, 1938, and “ thereafter until all its liabilities have been met and its bonds have been paid in full or such liabilities or bonds have otherwise been discharged ” (§ 1). That statute also provided (§§ 1, 14, subd. 2) that thereafter the Superintendent of Public Works is to assume jurisdiction of the Authority’s rights and properties, and to continue to charge tolls on the bridges until the aggregate of such tolls, “ over and above the expenses of maintenance and operation, shall equal the entire investment for the original construction of the Mid-Hudson bridge and abutments and the acquisition of real property and easements, as shall be evidenced by certificate of the state comptroller * * (Emphasis supplied.) At that time tolls are to cease. This provision as to tolls was re-enacted, without change material to our inquiry, by the Laws of 1939, chapter 870, section 538, subdivision 2.

The present governing statute is Public Authorities Law, article 3, title 2, as enacted by chapter 870 of the Laws of 1939, and subsequently amended. Two sections presently found under that title are of particular concern in this case.

Section 532-b provides in part:

“ § 532-b. Funding oe state’s claim. Before commencement of construction of the Kingston-Rhinecliff bridge, and before the issuance of bonds or other obligations to pay the cost of construction of such bridge, as authorized by this act, the unpaid balance of the state’s claim for the entire investment for the original construction of the Mid-Hudson bridge and abutments and acquisition of real property and easements shall be funded and repaid to the state from the proceeds of bonds of the authority issued therefor. * * * ” (Added by L. 1947, ch. 189, § 16.) (Emphasis supplied.)

Section 538 also provides in part:

“ § 538. Tolls, rules and regulations * * *. 2. The authority shall continue to maintain and collect tolls on the bridges and shall, subject to the terms of any existing bond resolution, apply all such tolls and other revenues from the operation of the bridges to the following charges in the order named:
“ (a) For payment of the cost of maintenance and operation of all the bridges ;
(b) For payment of installments of principal and of interest maturing upon bonds of the authority, if any, outstanding at the time this act takes effect;
(c) For the reduction of the state’s claim for the entire investment for the original construction of the Mid-Hudson bridge and abutments and acquisition of real property and easements, as shall be evidenced by the certificate of the state comptroller. * * * ” (Added by L. 1947, ch. 189, § 19.) (Emphasis supplied.)

In accord with subdivision (c) of section 538 last quoted above the Comptroller on May 2, 1947, made his certificate to the Authority as to the amount of the State’s claim then outstanding. The present controversy arises from the fact that the Comptroller included in the State’s claim $2,517,070.46 which is the combined interest cost to their maturity of bonds issued by the State in 1926 and 1928 to finance the original cost of construction of the Mid-Hudson Bridge.

The plaintiff Authority contends that interest cost is not properly a part of the State’s entire investment for the original construction of the Mid-Hudson bridge ”, and consequently should not be included in the amount certified.

The defendant Comptroller contends that the certificate is correct, his position being that it is the policy of the State, as evidenced by the succession of statutes which deal with the financing of the Mid-Hudson Bridge, that the State should eventually be reimbursed for all expenditures from its funds made in connection with that project —including the cost to the State of interest on that portion of its bonds of which the proceeds were devoted to the original bridge construction.

The Appellate Division, by a divided court, has sustained the plaintiff’s contention, and ordered that the Comptroller’s certificate be amended accordingly.

We thus reach the narrow question: Is the statutory language found in sections 16 and 19 of chapter 189 of the Laws of 1947, (supra)' — “* * * the entire investment [of the State] for the original construction of the Mid-Hudson bridge ” — intended to include the cost to the State of interest on bonds issued to finance that project?

Neither the industry of counsel nor our own research has disclosed a reported case which bears upon this question either directly or by analogy. Consequently, we turn to rules of construction and other means to aid us in ascertaining the legislative intent.

The word “ investment ” is a term which “ * * * has no technical definition as applied to money and usually its meaning must be determined from the context.” (Genesee Trustee Corp. v. Smith, 102 F. 2d 125, 127.) Nor are the ordinary business definitions of investment ” of assistance in this case where the Legislature has spoken in general terms of an outlay of State funds in the accomplishment of a public project.

We may assume, however, that by repeatedly and consistently placing the word “ entire ” immediately before “ investment ” the Legislature intended the word “ entire ” to serve some purpose. (People v. Dethloff, 283 N. Y. 309, 315; Allen v. Stevens, 161 N. Y. 122, 145; Palmer v. Van Santvoord, 153 N. Y. 612, 616.) In ruling that words in a statute are not to be rejected as superfluous when it is practicable to give each a distinct and consistent meaning, Chief Judge Andrews, writing for this court in Palmer v. Van Santvoord (supra), gave the following quotation from Lord Coke (p. 616): “ ‘ The good expositor *• * * gives effect to every word of the statute; he does not construe it so that anything should be vain and superfluous, nor yet make exposition against express words, but so expounds it that one part may stand agreeable with the other and all may stand together.’ ”

Applying this rule to the statutes with which we are dealing our thought is that in our search for the legislative intent we should give weight to the fact that, in making provision for ultimate payment of the State’s claim for its “ investment for the original construction ” of the Mid-Hudson Bridge, the Legislature consistently used the word “ entire ” in apposition with the word£ investment ’ ’. As we read the statutes to which reference has been made the repeated use of the word “ entire ” before <£ investment ” serves to express the Legislature’s intent that all expenditures made necessary by the project, including interest on bonds issued to finance the cost thereof, are to be considered a part of the State’s ££ investment for the original construction ”. In other words the phrase ££ entire investment ” has a broader and more inclusive import than the word £ £ investment ” standing alone. The two words together connote all items of cost to the State of the Mid-Hudson Bridge, of which cost one item is that of interest exceeding $2,500,000. In fact the word entire ” used in juxtaposition with ££ investment ” serves to point up and reinforce the Comptroller’s claim that the Legislature intended that the State and the Counties of Ulster and Dutchess should be reimbursed from bridge tolls for all items which go to make up the entire outlay for the project.

When the Mid-Hudson Bridge was first authorized in 1923, the only financial arrangement for its construction was a preliminary appropriation direct from the State Treasury. Nothing in the statute which authorized such construction (L. 1923, ch. 900) made provision for the issuance of State bonds or indicated that such a course was contemplated. Accordingly, we assume that the clause ££ the entire investment of the state for original construction and acquistion of real property and easements * * * ” (emphasis supplied) was intended to include all expenditures made by the State in connection with the original construction of the bridge and related expenditures indicated by the statute.

With the enactment of amendments (L. 1924, ch. 79; L. 1925, ch. 13), the recurrence of the phrase “ the entire investment of the state * * * ” persisted as originally incorporated in the statute. However, those amendments transferred from the State to the Counties of Ulster and Dutchess the duty of acquiring the land and easements essential to the construction of the bridge abutments and authorized those counties to issue bonds to finance such purchases. By the statute last cited above provision was also made for the reimbursement of those counties for such outlays and the amortization of county bonds issued for that purpose. The Superintendent of Public Works was directed, after depositing in the State Treasury that amount of the toll receipts which should equal “ the entire investment of the state for original construction”, to pay over toll receipts thereafter to the Counties of Ulster and Dutchess, * and shall continue to make such payments until the entire original investment of such counties for the acquisition of real property and easements shall have been repaid. Moneys so received by the treasurers of such counties shall be applicable to the payment of the principal and interest of bonds, if any, issued for the purpose of acquiring such real property or easements, or shall otherwise be applicable to such county purposes as the board of supervisors, by resolution, shall determine.” (L. 1925, ch. 13, § 3.) (Emphasis supplied.)

The Appellate Division held that in the light of the statutory provision last quoted above, which directed that reimbursement to the counties should include interest on bonds, the absence of a similar provision for reimbursement of the State indicates that the Legislature did not intend the State to be reimbursed for the interest paid on its bonds. We aré inclined, however, to agree with the defendant’s contention that the direction as to the broad use to which the counties are permitted to put the reimbursed funds serves rather to indicate that the Legislature meant by the phrase “ entire investment ” the total expenditures, respectively, of the counties and of the State for the construction" of the bridge, including the payment of interest on bonds which had to be issued in order to obtain the funds to purchase land and easements and to construct the bridge. The Authority was created by chapter 548 of the Laws of 1932, and was thereby authorized to issue its own bonds, pledging the tolls and other revenues as security therefor — the claim of the State being made secondary to that of the Authority’s bondholders. The proceeds of the bonds were directed to be applied “ First for the reimbursement of the counties of Ulster and Dutchess for moneys expended by such counties, without interest, pursuant to the provisions of section one of chapter nine hundred of the Laws of nineteen hundred twenty-three, as last amended by chapter thirteen of the Laws of nineteen hundred twenty-five * * * ”. The phrase “ without interest ” seems clearly to refer, not to payment by the counties of interest on their bonds (for L. 1925, ch. 13 remained in effect) but to payment of interest to the counties by the State in consideration of its debt to them. Much the same provision as to reimbursement of the counties is contained in section 6 of chapter 67 of the Laws of 1933.

In our view, moreover, further indication of the intent of the Legislature with respect to the expenditure of State funds may be found in the overall statutory scheme under which the Authority was created. Not only was the reimbursement of the entire investment ” of the State in the Mid-Hudson Bridge expressly directed, but when the acquisition and construction of other bridges and the acquisition of the Kingston-Bhinecliff Ferry were contemplated the State set up the Authority as a quasi-autonomous body charged with the duty not only of building or acquiring the facilities but also of financing those projects. The Authority was to issue its own bonds and notes, secured by its own income"— the tolls and revenue from the facilities — (see Public Authorities Law, §§ 532,532-a), upon which the State was not to be liable —- nor shall [the bonds] be payable out of any funds other than those of the authority ” (id. § 534). Bemedies of bondholders are given against the Authority, not against the State as such (id. § 537). The Authority is required to pay for the use of agents, employees and facilities of the Department of Public Works (id. 528, subd. 3). For all practical purposes — so far as finances are concerned — the Authority is an entity separate and apart from the State itself. It thus becomes apparent that at least one of the purposes of the Legislature in establishing the Authority was to provide a plan for construcing and acquiring Hudson Eiver crossing facilities which would not become a charge against the general funds of the State Treasury.

In the light of these circumstances, we conclude that the Legislature did not intend State funds to be depleted to the extent of some two and one-half million dollars by the method of financing which was a matter of the Legislature’s own choosing and by means of which the building of the Mid-Hudson Bridge was accomplished. On the contrary, we construe the phrase “ entire investment for the original construction ” to include interest paid and to be paid on bonds issued by the State to defray the cost of that project.

Accordingly, the judgment should be reversed and the relief requested by the plaintiff denied, without costs.

Loughran, Ch. J., Conway, Desmond, Dye, Fuld and Bromley, JJ., concur.

Judgment reversed, etc.


author: Bromley, J. Conway, J.

text:
    In the Matter of the Claim of Henry L. Sacripante, Respondent, against United Metal Spinning Co., Inc., Appellant, and Liberty Mutual Insurance Company, Respondent. Workmen’s Compensation Board, Respondent.
    Argued June 3, 1949;
    decided July 19, 1949.

      Abraham Markhoff for appellant.
    The award for double indemnity made against the employer is improper. (Matter of Tesar v. National Ventilating Co., 227 App. Div. 333; Lowry v. Anderson Co., 96 App. Div. 465; Matter of Hall v. Chatham Elec. Light, Heat & Power Co., 220 App. Div. 18, 246 N. Y. 544.)

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    The award for double compensation against the employer was proper. (Matter of Klotz v. Gluckstern’s Restaurant, 271 App. Div. 941; Matter of Miller v. Saratoga Onega Bottling Co., 271 App. Div. 941; Matter of Sackolwitz v. Hamburg & Co., 295 N. Y. 264; Matter of Molnia v.Kaplan & Co., 293 N. Y. 700 Matter of Braiter v. Addie Co., 282 N. Y. 326; Matter of Davidowicz v. Klipstein, 272 N. Y. 543; Matter of Kociolowics v. Tonawanda Corrugated Box Co., 252 App. Div. 716, 276 N. Y. 689; Matter of Joseph v. Sterilek Co., 285 N. Y. 796; Matter of Golisano v. Hart’s Food Stores, 270 App. Div. 961.)
   Bromley, J.

On May 2, 1944, claimant, then a minor sixteen years of age, was injured while operating a metal stamping machine a few hours after he had commenced the employment for which he had received an employment certificate from the board of education. The employment certificate had been duly filed in the employer’s office before claimant commenced work. The machine which he operated was guarded and its operation required no particular skill.

The Workmen’s Compensation í>oard awarded claimant compensation for a permanent injury and ordered the employer to pay a like amount as additional compensation under section 14-a of the Workmen’s Compensation Law. The employer alone appeals from the ruling of the board.

Section 14-a of the Workmen’s Compensation Law provides that compensation shall be double in amount “ if the injured employee at the time of the accident is a minor under eighteen years of age employed, permitted or suffered to work in violation of any provision of the labor law or in violation of any rule heretofore or hereafter adopted by the board of standards and appeals ”, and the employer alone is made liable for the increased compensation. The board applied section 14-a since it held the employer had violated the Labor Law by an inadequate description of the character of the employment in the pledge of employment, by failure to mail to the board of education notice of the beginning of employment, and by failure to return the employment certificate to the board of education together with notice of termination of employment.

We are called upon to decide (1) whether the description in the pledge of employment was inadequate and rendered the employment certificate void; (2) whether the failure to fulfill the notice requirements of the statute constitutes a violation of the Labor Law so as to impose liability under section 14-a.

Minors between sixteen and eighteen years of age may not be employed unless a standard employment certificate * * * issued in accordance with the provisions of the education law is kept on file in the office of the employer ” (Labor Law, § 131), and the employer is charged with the duty of filing the employment certificate before employment begins (Labor Law, § 132). The procedure for obtaining an employment certificate is found in the Education Law. A certificate may be issued by the superintendent of schools through duly designated certificating officers only in case * * * the nature of the employment as set forth in the pledge of employment cónform[s] to the provisions of the labor law ” (Education Law, § 3217). The pledge of. employment must be executed by the prospective employer and must show his name, the minor’s name, the days and hours of prospective employment and the character of the employment (Education Law, § 3224), and it must be approved and filed by the certificating officer, along with birth, health and school records, before an employment certificate is issued (Education Law, § 3217).

In the instant case, the employer executed a pledge of employment describing claimant’s prospective employment as that of helper to do light factory work and the employment certificate was issued by the certificating officer. In hearings before the referee, a representative of the board of education testified that, had the pledge of employment made clear that claimant would be put to work on a power-driven machine, further investigation would have been made before the employment certificate was issued.

The Labor Law does not prohibit the employment of minors over sixteen in the operation of power-driven machines and the Board of Standards and Appeals has made no rules prohibiting such employment. The description in the pledge of employment Avould seem to cover the operation of a simple machine requiring no skill to operate and there is no indication that the phrase “ light factory work ” had a special meaning to the board of education and that its use to describe generally the duties which claimant was to perform was misleading.

It cannot be said that the employer’s use of general terms constituted a false statement or that the employment of claimant at the machine in question was prohibited merely because the board of education would have referred the case to an investigating officer if the pledge of employment had disclosed that claimant Avould be employed to operate a machine. If, after a minor has begun to Avork, an investigation discloses that the work undertaken is dangerous to his health, a certificating officer has the power to revoke the employment certificate (Education Law, § 3226). But the power to revoke does not imply that a certificate, "properly issued upon a description of employment acceptable to the certificating officer, is void. Where approval is given without a precise description of the work to be performed by the minor, the employment certificate is not invalid. There was no finding by the board that the employer willfully used language inadequately describing claimant’s duties in order to mislead the board of education and obtain an employment certificate which might not otherwise have been granted. We conclude that the pledge of employment was not defective and that the employment certificate Avas validly issued.

The employer violated the Labor Lrav by failing to discharge the duty imposed by section 132. We conclude, however, that the failure to mail notices of the beginning and end of employment and the failure to return the employment certificate to the board of education in the circumstances of this case do not constitute violations of the Labor Law contemplated by section 14-a of the Workmen’s Compensation Law. (See Matter of Hall v. Chatham Elec. Light, Heat & Power Co., 220 App, Div. 18, 20, affd. 246 N. Y. 544.) The employee avbs not permitted * * * to work ” in violation of any provision of the Labor Law, within the meaning of section 14-a.

The purpose of section 14-a is to award adequate compensation to a minor employee (Bogarts v. Astor, 293 N. Y. 563), but its purpose is also to insure that an employer will not hire a minor without the knowledge of the board of education and its assent thereto as manifested by the employment certificate. This is evident from the fact that the employer alone is liable for the additional compensation, and any insurance taken out to cover this liability is void. In recent cases wherein awards of double compensation were sustained, the minor was employed without an employment certificate (Matter of Molnia v. Kaplan & Co., 293 N. Y. 700; Matter of Sackolwitz v. Hamburg & Co., 295 N. Y. 264; and, cf., Matter of Alino v. French Bottling Works, 299 N. Y. 781). Where the employer received an employment certificate duly issued by the board of education prior to employment of the minor and did not thereafter émploy him at work prohibited by the statute, no liability rests upon the employer under section 14-a of the Workmen’s Compensation Law.

The order of the Appellate Division should be reversed and the award of the Workmen’s Compensation Board annulled, with costs to the appellant in this court and in the Appellate Division against the Workmen’s Compensation Board.

Conway, J.

(dissenting). I dissent and vote to affirm on the ground that there is evidence in the record to support the board’s finding that the Labor Law was violated in that the services of claimant were obtained without full disclosure by the employer of the specific type of work in which he was to be engaged, viz., operation of an electrically driven, metal stamping power press.

Loughran, Ch. J., Lewis, Desmond, Dye and Fuld, JJ., concur with Bromley, J.; Conway, J., dissents in memorandum.

Order reversed, etc.


author: Bromley, J.

text:
    The People of the State of New York, Respondent, v. William F. Wrieden, Appellant.
    Argued May 25, 1949;
    decided July 19, 1949.

      David M. Palley for appellant.
    There is no evidence whatsoever that defendant was the bailee, servant, agent, employee, clerk or trustee of complainant. In fact, the testimony of complainant as the People’s witness is that the $1,000 was delivered to defendant in payment for 625 shares of common stock of Worne Plastics Corporation and that defendant promised to deliver the stock to complainant at some time in the future. (People v. Epstein, 245 N. Y. 234; People v. Gerety, 242 App. Div. 5.)

      Nathaniel L. Goldstein, Attorney-General (Daniel M. Cohen, Wendell P. Brown and Harry Kirshbaum of counsel), for respondent.
    The evidence supports defendant’s conviction for embezzlement of moneys entrusted to him for a particular purpose. No error was committed in the trial court’s charge. Accordingly, defendant’s conviction should be sustained, especially since no exception was taken to the charge and no motions were addressed to the verdict. (Moffatt v. Fulton, 132 N. Y. 507; People v. Meadows, 199 N. Y. 1; People v. Malkin, 250 N. Y. 185; People v. McCarthy, 250 N. Y. 358; People v. Pesky, 254 N. Y. 373; People v. Lamm, 292 N. Y. 224; People v. Lobel, 298 N. Y. 243; People v. Robinson, 284 N. Y. 75.)
   Bromley, J.

Defendant has been convicted of grand larceny in the first degree by embezzlement. The prosecution was conducted by the Attorney-General of the State of New York under the Martin Act (General Business Law, § 358). The indictment charged the alleged crime as follows: The defendant, in the County of New York, on or about the 28th day of February, 1946 and the 1st day of March, 1946, having certain property in his possession, custody and control as bailee, servant, agent, employee, clerk and trustee of George L. Mozzanica, to wit: One Thousand ($1,000.) Dollars in lawful currency of the United States of America owned by said George L. Mozzanica for the sole purpose of acquiring 625 shares of the common capital stock of Worne Plastics Corporation, for said George L- Mozzanica appropriated the said sum to his own use, with intent to deprive the owner of said money of the use and benefit thereof and..to appropriate the same to the use of the defendant.” ''

It is agreed that the applicable portion of the Penal Law is section 1290, which reads in part as follows: “ A person who, with the intent to deprive or defraud another of the use and benefit of property or tq appropriate the same to the nse of the taker, or of any other person other than the true owner, wrongfully takes, obtains or withholds, by any means whatever, from the possession of the true owner or of any other person any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind, steals such property and is guilty of larceny. ’ ’

On this appeal defendant challenges the sufficiency of the evidence that he held the money for the benefit of Mozzanica, asserting that the sum had been paid to him under a contract of sale.

Defendant was vice-president and office manager of Worne Plastics Corporation. The corporation was organized in 1945, to take over certain secret formulae developed by a Dr. Worne for the manufacture of acrylic resins and to manufacture under the secret formulae. The defendant owned more than 20,000 shares of the capital stock of that company.

Mozzanica was employed in January, 1946, as a bookkeeper by the corporation. He was aware of the then glowing prospects for the future of the corporation. On several occasions he approached defendant with a request to sell him some of the stock. Defendant explained that the corporation at that time was limited to twenty-five stockholders but the issuance of additional stock was contemplated, and finally agreed to see what he could do. Some time later he came to Mozzanica and said he had the stock. On February 28, 1946, Mozzanica delivered to defendant the sum of $1,000 in the form of two checks, one for $500, the other for $503.60, defendant returning to bim $3.60 change in cash. Mozzanica understood that defendant would deliver the stock to him as soon as defendant could do so. At the time the money was delivered defendant gave Mozzanica a receipt as follows:

“ 28 Feb. 1946
To whom it may concern,
“ This is to acknowledge receipt of One thousand dollars ($1,000) from George L. Mozzanica, to be applied toward the acquisition of (625) Six hundred twenty five shares of the Common capital stock of Worne Plastics Corporation.
W. F. Weiedee"

The stock was never delivered. The Attorney-General contends that the language of the receipt unequivocally evidences the receipt of money in trust and by its very terms restricted the purposes for which defendant could use the money. We cannot agree. The language is ambiguous, but Mozzanica’s testimony makes it clear beyond doubt that the transaction was a purchase and sale and completely refutes the charge that defendant occupied a position of trust. Mozzanica testified emphatically that he bought the stock from defendant, that in return for $1,000 which he gave defendant the latter was to give him 625 shares of stock and that defendant was selling him the stock.

Defendant made timely objection to submission of the case to the jury by moving for dismissal of the indictment at the close of the People’s case and of his own (People v. Ledwon, 153 N. Y. 10). The evidence in this record does not establish an embezzlement, but rather supports defendant’s contention that the transaction was a purchase and sale. Since the proof clearly falls below the standard required to rebut the presumption of defendant’s innocence, the conviction must be reversed (cf. People v. Bearden, 290 N. Y. 478; People v. Gluck, 188 N. Y. 167).

The judgments should be reversed and the indictment dismissed.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Fuld, JJ., concur.

Judgments reversed, etc.


author: Conway, J.

text:
    Metropolitan Life Insurance Company, Respondent, v. Bella Schmidt, as Executrix of Philip E. Schmidt, Deceased, Appellant.
    Argued May 19, 1949;
    decided July 19, 1949.

      Louis Klugerman for appellant.
    I. The policy became incontestable after March 23,1947. The action was not started within the period permissible. (Meridian Life Ins. Co. v. Milam, 172 Ky. 75; Travelers Ins. Co. v. Leonard, 120 N. J. Eq. 6; Pacific Mut. Life Ins. Co. v. Alsop, 191 Ind. 638; O’Rourke v. Prudential Ins. Co., 294 Ill. App. 30; American Nat. Bank v. Service Life Ins. Co., 120 F. 2d 579; McGrail v. Equitable Life Assur. Soc., 292 N. Y. 419.) II. There is no basis for considering the General Construction Law. Determination of the issue raised depends on the clear provisions of the policy. (Matter of Bronson, 150 N. Y. 1; Goon v. Fu Manchu’s Restaurant, 253 App. Div. 531.) III. Sunday, the last day of the term, is to be included in the computation of the two-year incontestable period. (Ryer v. Prudential Ins. Co., 185 N. Y. 6; Benoit v. New York Central & Hudson Riv. R. R. Co., 94 App. Div. 24; Aultman & Taylor Co. v. Syme, 163 N. Y. 54; Hendrickson v. Callan, 70 Misc. 342; Jablon v. City of New York, 177 Misc. 838, 268 App. Div. 859; Jessar Realty Corp. v. Friedman Realty Co., 253 N. Y. 298; Calagna v. Sheppard-Pollak, 264 App. Div. 589.)

      Edioard T. Post and Frederick G. Tanner for respondent.
    I. The suit was begun within the time limited in the incontestability clause. (Goon v. Fu Manchu’s Restaurant, 253 App. Div. 531; Prokop v. Bedford Waist & Dress Co., 187 App. Div. 662; Tismer v. New York Edison Co., 228 N. Y. 156; Biloz v. Tioga County Patrons’ Fire Relief Assn., 21 N. Y. S. 2d 643, 260 App. Div. 976; Morss v. Purvis, 68 N. Y. 225; Hudspith v. Pierce-Arrow Motor Car Co., 180 App. Div. 147; People v. Burgess, 153 N. Y. 561; Matter of Garelick v. Rosen, 274 N. Y. 64; Phelan v. Douglass, 11 How. Prac. 193.) II. Appellant has overlooked the fact that March 23,1947, fell on a Sunday. Under section 20 of the General Construction Law, Sunday “ must be excluded from the reckoning if it is the last day of such period.” (Matter of Bardol, 253 App. Div. 498, 278 N. Y. 543.)
   Conway, J.

On March 24,1945, a policy of life insurance was issued in this State to one Schmidt. In order to conform to the mandate of paragraph (b) of subdivision 1 of section 155 of the Insurance Law, the issuing insurance company included in the policy, verbatim, the statutory provision regarding incontestability, viz., “ * * * This Policy shall be incontestable after it has been in force during the lifetime of the Insured for a period of two years from its date of issue, except for nonpayment of premiums * * *.” (Emphasis supplied.)

On March 24, 1947, the insurance company commenced this action for rescission of the policy, alleging that the application therefor had contained certain material misrepresentations. The action was commenced.by delivery of the summons to the Sheriff of the City of New York, New York County, wherein Schmidt resided.

In addition to a general denial, the answer of the defendant insured contained an affirmative defense that the action was not commenced within the period specified in the policy and, upon that ground, defendant moved for summary judgment. Special Term denied the motion and, on appeal, the. Appellate Division affirmed unanimously. Defendant now appeals to this court from such nonfinal order of affirmance by permission of the Appellate, Division which has certified to us the question whether the action was “ timely commenced under the terms of the said policy ”.

Decision herein turns upon whether we begin computation of the two-year period from March 24, or from March 25, 1945. If the date of issue, March 24,1945, be excluded from the two-year period, the action was commenced on the last day of such period, March 24,1947, and within the time limited. If the date of issue be included in the two-year period, the last day of such period was March 23, 1947, and the action was commenced one day too late, unless, as argued by the insurance company, the fact that March 23,1947, fell on a Sunday extended such period an extra day.

The insurance company contends that the case is controlled by section 20 of the General Construction Law, which provides in pertinent part as follows: A number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made. * * * In computing any specified period of time from a specified event, the day upon which the event happens is deemed the day from which the reckoning is made. The day from which any specified period of time is reckoned shall be excluded in making the reckoning.” (Emphasis supplied.) That rule applies to the computation of years as well as of days, weeks or months. (Tismer v. New York Edison Co., 228 N. Y. 156, 163-164.)

We agree that the above-quoted portion of section 20 is determinative of the instant case. The General Construction Law is expressly made “ applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter.” (General Construction Law, § 110.)

As indicated above, the policy provision regarding incontestability was inserted in the policy pursuant to paragraph (b) of subdivision 1 of section 155 of the Insurance Law, which provides : No policy of life insurance * * * shall be delivered or issued for delivery in this state unless it contains in substance the following provision or provisions which in the opinion of the superintendent are more favorable to policyholders: * * * (b) A provision that the policy shall be incontestable after it has been in force during the lifetime of the insured for a period of two years from its date of issue, except for nonpayment of premiums * * ” Thus the language of the policy provision which was copied from the statute, is statutory language, and as such, is subject to the General Construction Law, since there is nothing in the general object or context of the Insurance Law provison to indicate that a different meaning or application was intended from that required to be given by section 20 of the General Construction Law. A holding to the same effect is implicit in our recent decision in Franklin v. John Hancock Mut. Life Ins. Co. (298 N. Y. 81).

Accordingly, we hold that the date of issue of the policy, March 24, 1945, must be excluded from the computation of the two-year period, and that the instant action for rescission, commenced on March 24, 1947, is timely. This view of the case makes it unnecessary to determine the insurance company’s alternative contention that even if the last day of the two-year period were March 23, 1947, such period should be extended an extra day because March 23,1947, fell upon a Sunday.

The order appealed from should be affirmed, with costs, and the question certified answered in the affirmative.

Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Bromley, JJ., concur.

Order affirmed, etc.


author: Lewis, J. Fuld, J.

text:
    Arthur Wagner, Respondent, v. Panama Railroad Co., Appellant.
    Argued April 12, 1949;
    decided July 19, 1949.

      Thomas J. Maginnis, Arthur P. Loughran and Edwin Phillips Kohl for appellant.
    I. The Panama Bailroad Company is a “ Federal agency ” within the meaning of the Federal Tort Claims Act. (Wickman v. Inland Waterways Corp., 78 F. Supp. 284; New York ex rel. Rogers v. Graves, 299 U. S. 401.) II. The order should be reversed and the complaint dismissed under subdivision 9 of rule 107 of the Buies of Civil Practice because the cause of action accrued against the United States and not against defendant. (Wickman v. Inland Waterways Corp., 78 F. Supp. 284.) III. The order should be reversed and the complaint dismissed under subdivision 2 of rule 107 of the Buies of Civil Practice for lack of jurisdiction of the subject matter.

      Louis R. Harolds and William L. Standard for respondent.
    I. Prior to the adoption of the Federal Tort Claims Act, seamen had a well-established and recognized remedy under specific statutes and laws relating to the liability of this defendant in seamen injury suits. (Panama R. R. Co. v. Johnson, 264 U. S. 375; Tammis v. Panama R. R. Co., 202 App. Div. 226; Flynn v. Panama R. R. Co., 121 Misc. 239; Mahnich v. Southern S. S. Co., 321 U. S. 96; Rey v. Colonial Navigation Co., 116 F. 2d 580; Seas Shipping Co. v. Sieracki, 328 U. S. 878; State of Maryland, 85 F. 2d 944; German v. Carnegie Illinois Steel Corp., 156 F. 2d 937; O’Donnell v. Great Lakes Dredge Co., 318 U. S. 36.) II. The Federal Tort Claims Act should not be construed to repeal settled rights by implication. (Sweet v. United States, 71 F. Supp. 863; State of Maryland v. United States, 165 F. 2d 869; Jefferson v. United States, 77 F. Supp. 706; Van Wil v. United States, 77 F. Supp. 22.) III. The language of the Federal Tort Claims Act itself shows that it was not intended to apply to seamen’s injury cases, where existing law had already provided adequate remedies to meet the peculiar needs of the industry. (Panama R. R. Co. v. Johnson, 264 U. S. 375; Long v. United States, 78 F. Supp. 35; Ekberg v. United States, 76 F. Supp. 99.) IV. Congress may not be presumed to have intended to alter seamen’s long and well-established rights, by implication. (Hust v. Moore-McGormack Lines, 328 U. S. 707; Brady v. Roosevelt S. S.

      Co., 317 U. S. 575; Panama R. R. Co. v. Minnix, 282 F. 47; Sloan Shipyards Corp. v. United States Fleet Corp., 258 U. S. 549.)
   Lewis, J.

Upon this appeal, taken by permission of the Appellate Division from an order of that court unanimously affirming an order of Special Term, the scope of our inquiry is defined by the following certified question: Was the order of Special Term proper in denying defendant’s motion to dismiss the complaint herein pursuant to Eule 107, subdivisions 2 and 9 of the Buies of Civil Practice? ”

The defendant asserts the legal insufficiency of the complaint upon the grounds that, under provisions of the Federal Tort Claims Act (Aug. 2,1946, ch. 753, § 401 et seq., 60 U. S. Stat. 842 et seq.), (1) the cause of action alleged did not accrue against the defendant, and (2) such statute withdraws from the Supreme Court of this State jurisdiction of the subject of the action.

From facts alleged in the complaint it appears that the defendant, Panama Railroad Co., is the owner and operator of S. S. Cristobal; that on March 29,1947, while plaintiff was in the course of his employment as a merchant seaman aboard that vessel, he sustained personal injuries when he was struck by the door of an icebox; that the injuries so sustained were not due to plaintiff’s fault but were caused by negligence of the defendant and unseaworthiness of the vessel, and that plaintiff’s injuries became aggravated because of the defendant’s failure to provide plaintiff with maintenance and cure. For the injuries sustained plaintiff demands that the defendant respond to him in damages, including wages, maintenance and cure.

From further facts brought into the record by an affidavit submitted in support of the defendant’s motion to dismiss the complaint (rule 107 id., subds. 2, 9), it appears that in the year 1905, in connection with the acquisition of the Panama Canal Zone and to facilitate development of the Panama Canal, the United States Government purchased all the capital stock of the defendant corporation, and has ever since held that stock; that by Executive Order dated May 9, 1904, the President of the United States directed that the defendant be made an adjunct of the Panama.Canal; that subsequent thereto the Federal Government has utilized and maintained the defendant company not only to operate a railroad across the Isthmus of Panama but also to operate three steamships — of which S.S. Cristobal is one — which ply between New York and Cristobal, Canal Zone, and which, with incidental commissaries, harbor terminals, and related facilities, provide transportation for Government freight, civilian employees of the Panama Canal and the Panama Bail-road Co. and their families as well as the families of army and navy personnel and employees of the United States Government stationed in the Canal Zone. The affidavit submitted by the defendant states further that “ When the accident referred to in the complaint took place, the S.S. * Cristobal ’ was engaged in a scheduled trip on her regular run. ’ ’

Upon those facts the defendant contends that, as the owner and operator of the vessel upon which plaintiff was injured, it was then acting as an instrumentality or agency of the United States. Accordingly, it argues, the present action will not lie against the defendant because — contrary to provisions of the Federal Tort Claims Act (supra) —■ the Panama Railroad Co. (rather than the United States) is named as defendant herein, and the action is brought in the Supreme Court of New York (rather than the United States District Court for the district where the plaintiff is resident).

The sections of the Federal Tort Claims Act (supra) which the defendant invokes, insofar as relevant to the question before us, are as follows:

“ Sec. 410. (a) Subject to the provisions of this title, the United States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred, including the United States district courts for the Territories and possessions of the United States, sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, accruing on and after January 1,1945, on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office, or employment, under circumstances where the United States, if a private person, would, he liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred.”
“ Sec. 423. From and after the date of enactment of this Act, the authority of any Federal agency to sue and he sued in its own name shall not be construed to authorize suits against such Federal agency on claims which are cognizable under part 3 of this title, and the remedies provided by this title in such cases shall be exclusive.”

It should be further noted that, as originally enacted and as applicable to the case at bar, section 420 id. established a one-year Statute of Limitation for all claims against the United States cognizable under that statute.

If the position taken by the defendant in this case is to prevail, it calls for a ruling that by the enactment of the Federal Tort Claims Act in 1946, Congress intended not only to subtract in large measure from substantial rights which it had accorded to seamen by the enactment in 1915 of the Jones Act (U. S. Code, tit. 46, § 688) but also to withdraw from seamen fundamental rights which courts of admiralty have jealously guarded in their administration of maritime law. We are not disposed so to rule.

In reaching that conclusion we have been influenced by the historic background of general maritime law against which we have viewed the problem presented. That background brings out in bold relief the fact that <£ " * * maritime law by inveterate tradition has made the ordinary seaman a member of a favored class. He is a £ ward of the admiralty,’ often ignorant and helpless, and so in need of protection against himself as well as others.” (Warner v. Goltra, 293 U. S. 155, 162; and see Robertson v. Baldwin, 165 U. S. 275, 282-283, 287; The Arizona v. Anelich, 298 U. S. 110, 121-123; Calmar S.S. Corp. v. Taylor, 303 U. S. 525, 527-529; Socony-Vacuum Oil Co. v. Smith, 305 U. S. 424, 429-432; Aguilar v. Standard Oil Co., 318 U. S. 724, 727.) Long ago Mr. Justice Story had occasion to state the basis for that traditional wardship under which, as a protective measure, admiralty has placed seamen: £ £ Seamen are in some sort co-adventurers upon the voyage; and lose their wages upon casualties, which do not affect artisans at home. They share the fate of the ship in cases of shipwreck and capture. They are liable to different rules of discipline and sufferings from landsmen. The policy of the maritime law, for great, and wise, and benevolent purposes, has built up peculiar rights, privileges, duties, and liabilities in the sea-service, which do not belong to home pursuits.” (Reed v. Canfield, Fed. Cas. No. 11,641, p. 428, 1 Sumn. 195, 199.)

It thus came about that for many years antedating 1915, it was the settled law in admiralty that, in case a seaman became ill or sustained injuries in the service of his ship, the vessel and her owner were liable to the extent of his maintenance and cure, and for his wages, at least so long as the voyage continued; that the vessel and her owner were liable to an indemnity for injuries suffered by a seaman in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the vessel; that members of the crew were fellow servants and could not recover for injuries sustained through the negligence of another crew member beyond the expense of their maintenance and cure; and that a seaman could not recover an indemnity for the negligence of the master of the ship, or any member of the crew, but was entitled to maintenance and cure, whether his injuries were caused by negligence or accident. (The Osceola, 189 U. S. 158,175.)

It was not until 1915 that Congress — knowing ‘ * * * that men employed upon a ship were without a remedy in damages for negligence beyond their cure and maintenance, unless the injury was a consequence of the unseaworthiness of the ship or a defect in her equipment ” (Warner v. Goltra, 293 U. S. 155, 158, supra) — enacted legislation commonly known as the Jones Act (March 4,1915, ch. 153, § 20, 38 U. S. Stat. 1185; June 5, 1920, ch. 250, § 33, 41 U. S. Stat. 1007; U. S. Code, tit. 46, § 688).

That statute provides in part as follows: Any seaman who shall suffer personal injury In the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply ”.

By this enactment Congress thus chose, by reference in the text, to make applicable to seamen injured in the course of their employment, provisions of the Federal Employers ’ ■ Liability Act (U. S. Code, tit. 45, §§ 51-60) which statute gives to railroad employees a right, if suit is commenced within three pears from its accrual (§ 56 id.), to institute an action of which courts of the United States and courts of the several States shall have concurrent jurisdiction (§ 56 id.), to recover for injuries resulting from the negligence of their employer, its agents or employees. (De Zon v. American President Lines, 318 U. S. 660, 665; Panama R.R. Co. v. Johnson, 264 U. S. 375, 388-389; The Arizona v. Anelich, supra, pp. 118-119; O’Donnell v. Great Lakes Dredge & Dock Co., 318 U. S. 36, 38-39.)

The legislation comprising the Jones Act “ * * * was remedial, for the benefit and protection of seamen who are peculiarly the wards of admiralty. Its purpose was to enlarge that protection, not to narrow it.” (The Arizona v. Anelich, supra, p. 123.) To accomplish that end the statute has been consistently the subject of liberal construction. (Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 380-381; Jamison v. Encarnacion, 281 U. S. 635, 639; Alpha S. S. Corp. v. Cain, 281 U. S. 642; Cortes v. Baltimore Insular Line, 287 U. S. 367, 375; Warner v. Goltra, supra, pp. 156-157, 162; Garrett v. MooreMcCormack Co., 317 U. S. 239, 248.)

In its brief filed with us on this appeal the defendant concedes that prior to the enactment in 1946 of the Federal Tort Claims Act (supra) the defendant was subject to the provisions of the Jones Act, and that defendant is expressly excepted from the provisions of the Suits in Admiralty Act (U. S. Code, tit. 46, § 741). The defendant argues, however, that by providing in section 423 of the Federal Tort Claims Act (quoted supra) that the remedies prescribed by that act shall be exclusive, Congress declared its intention to prohibit an action — such as the case at hand — brought in a State court by a seaman injured in the course of his employment. The defendant points to the fact that the plaintiff is not left without a remedy because, as an injured employee of the defendant — a Federal agency — the Federal Tort Claims Act affords him the right to bring suit in a Federal District Court against the United States under conditions therein prescribed.

Disagreeing, as we do, with the defendant’s position, we note first the difference in certain fundamental rights accorded to a suitor under the two statutes: by the Jones Act — the earlier statute —- Congress has given to an injured seaman the right, at his election ”, to institute against his employer an action in negligence for damages with the right of a trial by jury (U. S. Code, tit. 46, § 688) of which action both Federal and State courts have concurrent jurisdiction and as to which the statute of limitations is fixed at three years (U. S. Code, tit. 45, § 56); by the Federal Tort Claims Act — the later statute — the Federal courts, “ sitting without a jury ” (emphasis supplied) are given exclusive jurisdiction of any action brought under the act, and the statute of limitations (under the original act here invoked by the defendant) is one year. (§§ 410, 420, 423 id.)

In the caption of the 1915 statute which contained the original enactment of the Jones Act (ch. 153, § 20, 38 U. S. Stat., pp. 1185, 1164) Congress declared its intention thereby to be to promote the welfare.of American seamen ”. (Panama R. R. Co. v. Johnson, 264 U. S. 375, 389, supra.) We find nothing in that enactment nor in its amendment in 1920 (ch. 250, § 33, 41 U. S. Stat. 1007; U. S. Code, tit. 46, § 688) to indicate a lessening of concern by Congress for the welfare of a seaman injured in the course of his employment; nor was there a withdrawal of those protective measures which had long been accorded him. Indeed, as we have seen, there is distinguished authority for the statement that the purpose of the Jones Act “ * * * was to enlarge that protection, not to narrow it.” (The Arizona v. Anelich, supra, p. 123.)

Reference has been made to the traditional care which courts in admiralty have consistently exerted for the welfare of seamen injured in the course of their employment. We also know that the enactment of the Jones Act — which gave an injured seaman the right within three years to bring suit against his employer in either a State or Federal court where the right of trial by jury will be accorded to him — “ * * # was the culmination of a long struggle by seamen to secure more adequate relief in case of injury or death, incurred in the course of employment, than had been afforded by preexisting law.” (Bust v. Moore-McCormack Lines, 328 U. S. 707, 715.)

In view of the solicitude for an injured seaman’s welfare shown by courts of admiralty and by Congress we do not think — as claimed by the defendant — that it was the intent of Congress, by enacting the Federal Tort Claims Act, to forbid an injured seaman from bringing suit against his employer unless within one year his action is instituted in a Federal District Court where he will be deprived of the right of trial by jury. We may not lightly assume an intention by Congress to depart so abruptly from a policy which through a long period of years has become deeply imbedded in maritime law and has been consistently administered by the courts of this land. Our conclusion is that if, by enacting the Federal Tort Claims Act in 1946, Congress had intended to make such drastic subtractions from those fundamental rights it had granted to injured seamen in 1920 by an amendment to the Jones Act, it would have expressed such a purpose in precise words which left no doubt as to that intention. (Brady v. Roosevelt S.S. Co., 317 U. S. 575, 581.)

The order should be affirmed, with costs. The question certified by the Appellate Division is answered in the affirmative.

Fuld, J.

(concurring). Desirable as may be the result achieved by the court’s decision, it is accomplished, I suggest, by rewriting the statute passed by Congress. I deem cardinal the rule, laid down by the eases, that in the construction * * * of statutes * * * the intent of the framers * * * is to be sought first of all, in the words and language employed, and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation.” (McCluskey v. Cromwell, 11 N. Y. 593, 601; see, also, Matter of Palmer v. Spaulding, also decided today, 299 N. Y. 368.) Consonant with that principle, it is settled that we may not read exceptions into a plainly worded statute which is exclusive in terms. (See People v. Rathbone, 145 N. Y. 434; People v. Long Island R. R. Co., 194 N. Y. 130; Matter of Tishman v. Sprague, 293 N. Y. 42, 50.)

It is true that, if we find the Federal Tort Claims Act applicable to this case, the plaintiff, a merchant seaman, will lose his right to sue in the State courts. And it is likewise true that the underlying design was to give many persons injured by the negligent or wrongful act or omission of Federal employees a cause of action which previously they did not possess. It is easy to conjecture that Congress could not have intended to circumscribe the rights of seamen employed on ships of the Government or a governmental agency, it is easy to conjecture that Congress meant to permit this plaintiff to sue in the State courts — but, the question is, what did Congress say about it? In short, did Congress except from the operation of the Act a claim for which a remedy was provided by the Jones Act (U. S. Code, tit. 46, § 688) ? If the statute is to be taken as meaning what it says, the conclusion is clear that Congress gave thought to the matter and decided to include within the coverage of the Federal Tort Claims Act all claims against the Government based upon the negligence of a Government employee excepting only those set forth in section 421.

Aware that certain types of claims could be prosecuted under many existing Federal statutes, Congress listed twelve groups of claims and, in section 421, explicitly excepted them from the provisions of the Federal Tort Claims Act. Thus, Congress announced in so many words that “ The provisions of this title shall not apply to * * * (d) Any claim for which a remedy is provided by the Act of March 9, 1920 (U. S. C., title 46, secs. 741-752, inclusive), or the Act of March 3,1925 (U. S. C., title 46, secs. 781-790, inclusive), relating to claims or suits in admiralty against the United States ”. However, it did not include or mention the Jones Act. That statute is found in United States Code, title 46, section 688, and its omission from the listing of the twelve excepted groups of claims is the more significant, since the two statutes referred to in subdivision (d) have to do with admiralty and maritime claims against the United States and the claims mentioned in subdivision (g) relate to those “ arising from injury to vessels, or to the cargo, crew, or passengers of vessels, while passing through the locks of the Panama Canal or while in Canal Zone waters.”

Perhaps, Congress was guilty of an oversight in not similarly mentioning any claim for which a remedy is provided by the Jones Act ”, but I do not see how we may say so. Though I would read a statute such as the one before us liberally and in favor of persons in plaintiff’s class, I see no justification for rewriting it by inserting an exception which — for all we know —• Congress may have designedly and deliberately omitted.

However, an affirmance is dictated by another consideration.

The motion to dismiss is directed against the complaint in its entirety. Here, the claim based upon negligence is only one of three causes of action stated in the complaint. The other two causes are for unseaworthiness and for maintenance and cure. In my opinion, those causes of action are good and valid, for I do not believe that the claims upon which they are based are within the reach of the Federal Tort Claims Act. If that is so, then the motion to dismiss the complaint must, in any event, be denied. (See, e.g., Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79; Taster v. Solotaroff, 273 App. Div. 32, 33.)

Accordingly, I would affirm on the ground that the complaint states good causes of action regardless of the validity or invalidity of that cause which is based upon the claim of negligence.

Conway, Desmond and Dye, JJ., concur with Lewis, J.; Fuld, J., concurs in separate opinion in which Lougiiran, Ch. J., and Bromley, J., concur.

Order affirmed, etc.