author: Desmond, J. Conway, J.

text:
    In the Matter of the Claim of Frank Pestlin, Respondent, against Haxton Canning Company, Inc., et al, Respondents. Workmen’s Compensation Board, Appellant.
    Argued April 12, 1949;
    decided July 19, 1949.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Boy Wiedersum of counsel), for appellant.
    I. Ample evidence supported the finding of the board that claimant was an employee of Haxton Canning Company. (Taylor v. Bradley, 39 N. Y. 129; Stroher v. Elting, 97 N. Y. 102; Leggett v. Hyde, 58 N. Y. 272; Matter of Enright v. Asplundh Tree Expert Co., 297 N. Y. 452; Matter of Comstock v. Grastorf, 295 N. Y. 875; Matter of Romeo v. Holley Canning Co., 272 App. Div. 1092; Matter of Smothers v. D. & M. Pharmacy, 271 App. Div. 760; Matter of Ferreira v. Sutherland, 270 App. Div. 869; Matter of Maher v. Commander Taxi Corp., 227 App. Div. 832.) II. Claimant was not a farm laborer but was performing work incidental to the employer’s canning business. In any event, he was covered by the employer’s policy of compensation insurance under the provisions of group 19 of subdivision 1 of section 3 and subdivision 4 of section 54 of the Workmen’s Compensation Law. (Matter of Clarke v. Roger I. Sherman, Inc., 184 App. Div. 921; Lewkowitz v. Cohen, 210 App. Div. 803; Matter of Hamilla v. Gade, 278 N. Y. 502; Matter of Miles v. Colegrove, 258 App. Div. 1014, 284 N. Y. 609; Vincent v. Taylor Bros., 180 App. Div. 818; Matter of Baum v. Welden, 294 N. Y. 464; Matter of Butterfield v. Brown, 287 N. Y. 623; Matter of Moreno v. Halstead Canning Co., 258 App. Div. 832; Matter of Adams v. Ross, 230 App. Div. 216.) III. The award of double compensation was properly made pursuant to section 14-a of the Workmen’s Compensation Law on ample evidence establishing a violation of section 131 of the Labor Law. (Matter of Sackolwitz v. Hamburg & Co., 295 N. Y. 264; Matter of Newton v. Spear & Co., 270 App. Div. 667, 296 N. Y. 918; Matter of Miller v. Saratoga Onega Bottling Co., 271 App. Div. 941; Matter of Joseph v. Sterilek Co., 260 App. Div. 969, 285 N. Y. 796; Matter of Braiter v. Addie Co., 256 App. Div. 882, 282 N. Y. 326; Matter of Warner v. Wendt’s Ice Cream Co., 256 App. Div. 1017; Matter of Kociolowicz v. Tonawanda Corrugated Box Co., 252 App. Div. 716.)

      Morgan F. Bisselle and Warren C. Tucker for Utica Mutual Insurance Company, respondent.
    I. Claimant was not an employee of Haxton at the time he was injured. II. Assuming, but not conceding, that claimant was an employee of Haxton at the time he was injured, he was a farm laborer and excluded from the Workmen’s Compensation Law. (Matter of Bennett v. Stoneleigh Farms, 254 App. Div. 790; Matter of Davis v. Ryan, 262 App. Div. 982, 287 N. Y. 778; Matter of Harter v. Andrus, 259 App. Div. 942; Matter of La Duke v. Martin, 261 App. Div. 344, 287 N. Y. 546.)

      Frederick T. Pierson for Haxton Canning Company, Inc., respondent.
    I. The employment of claimant was not illegal under section 131 of the Labor Law. (Coleman v. Bartholomew, 175 App. Div. 122; Shrader v. State, 46 N. Y. S. 2d 199; Matter of Lazarus [Corsi], 294 N. Y. 613; Matter of Tesar v. National Ventilating Co., 227 App. Div. 333.) II. Claimant was a farm laborer within the meaning of the Workmen’s Compensation Law. (Matter of Davis v. Ryan, 262 App. Div. 982, 287 N. Y. 778; Matter of Bennett v. Stoneleigh Farms, 254 App. Div. 790; Matter of La Duke v. Martin, 261 App. Div. 344, 287 N. Y. 546; Matter of Harter v. Andrus, 259 App. Div. 942; Matter of Halletz v. Wiseman, 193 App. Div. 4; Ackert v. Delano, 246 App. Div. 751, 271 N. Y. 584; Brockett v. Mietz, 184 App. Div. 342.) III. Claimant was not employed by Haxton Canning Company. (Sweet v. Board of Education, 290 N. Y. 73; Kittle v. Toton of Kinderhook, 214 App. Div. 345.)
   Desmond, J.

From the time of its original enactment (see L. 1913, ch. 816) the New York Workmen’s Compensation Law has expressly excluded from its coverage: “ farm laborers ” (present § 2, subd. 4). None of the hundreds of amendments passed by the Legislature to extend the coverage and increase the benefits of the act, have in any way affected that exclusion. It is, therefore, beyond the power of the board or the court to grant or affirm an award to one injured when working as a farm laborer.

This injured claimant lived across the street from the farm where he was hurt. He had previously worked as a farm hand on this same farm. The day before this accident he was, as he and the farmer both testified, hired to do farm work on this farm. When injured, his work was driving a tractor which was operating, on the farm, a machine which removed beet tops from beets which had been pulled, and stacked on the ground; his arm was severed when caught and dragged into the topping machine. That such work was farm labor seems to me to be obvious, and it was farm labor whether claimant was working for the farmer Totten or for Haxton Canning Company, Inc., for whose ultimate use in its cannery the beets were grown.

Since the only question here is as to whether claimant was, Avhen injured, Avorking as a “ farm laborer ”, it is immaterial Avhether the arrangement betAveen the owner of the farm and the farmer was a lease, a joint venture, or one for work and labor, and likewise immaterial whether, as between the owner and the farmer, Taylor v. Bradley (39 N. Y. 129) applies.

The order should be affirmed, with costs.

Conway, J.

(dissenting). This is an appeal by the Workmen’s Compensation Board from an order of the Appellate Division, Third Department, which reversed, by a closely divided court, a decision of the Workmen’s Compensation Board (1) aAvarding claimant compensation against the employer and carrier for 100% loss of his right arm and (2) granting similar — or double — compensation to the claimant solely against the employer under the provisions of section 14-a of the Workmen’s Compensation LaAV on the ground that the claimant was a minor illegally employed at the time of the accident in violation of the provisions of section 131 of the Labor Law.

Section 131 of the Labor LaAV prohibits the employment of minors between the ages of sixteen and eighteen in or in connection with or for a factory, establishment, trade, business or occupation specified in section 130 of the Labor Law, unless either a standard employment certificate, a special employment certificate or a vacation Avork permit issued in accordance with the provisions of the Education Law, is kept on file in the office of the employer at the child’s place of employment, authorizing the employer named therein to employ the child. It is not disputed that claimant Avas sixteen years old at the time of this accident and that the employer did not comply mth section 131 of the Labor Law.

Respondents contend (1) -that claimant was not an employee of Haxton Canning Company, Inc., and (2) that, in any event, claimant was a farm laborer who was excluded from the protection of the proAdsions of the Workmen’s Compensation LaAV by section 2, subdivision 4. Both contentions were sustained by the majority of the Appellate Division.

The claimant Pestlin was born on May 12, 1929, and was therefore sixteen years of age at the time of the accident on October 20,1945.

The employer Haxton Canning Company, Inc. (hereinafter called Haxton), was located in western New York and was engaged in canning vegetables and other commodities. It was also engaged in the business of growing special crops for use in its canning business.

In making its award to claimant the board made the following findings of fact:

“ 2. On October 20, 1945, while the said Frank Pestlin was engaged in the regular course of his employment and while working for his employer, driving a tractor which was power connected to a topping machine, his right arm was caught in the unguarded power drive of the topping machine and dragged around the shaft. He sustained accidental injuries in the nature of a crushing injury of the right arm and forearm, requiring an amputation of the right arm about two inches below the shoulder, resulting in 100% loss of the use of the right arm. * * *
5. At the time of the accident herein, the said Frank Pestlin was a minor under eighteen years of age, and was employed illegally, in violation of Section 131 of the Labor Law, in that he was employed in or in connection with or for a factory, establishment, trade, business or occupation specified in Section 130 of the Labor Law, and no standard employment certificate, special employment certificate or vacation work permit issued in accordance with the provisions of the Edúcation Law was kept on file in the office of the employer at the child’s place of employment, authorizing the employer named therein to employ said child.
“ 6. The said Frank Pestlin was not a farm laborer at the time of the accident. He was an employee and working for and in the interest of the Haxton Canning Co.”

Section 20 of the Workmen’s Compensation Law provides: ‘ ‘ The decision of the board shall be final as to all questions of fact * * Thus it shall be our duty to determine whether those findings were fairly warranted by the evidence, because if they were, then the order of the Appellate Division must be reversed and the award of the Workmen’s Compensation Board reinstated. (Matter of Baum v. Welden, 294 N. Y. 464, and cases there cited.)

In onr judgment there was ample evidence to sustain the board’s finding that claimant was in the employ of Haxton at the time of the accident. The Haxton Company was owned and controlled by one Sherman Haxton and other members of his family. One of the properties was the Fred Slocum farm which consisted of 180 acres and was located at Byron, N. Y. It stood in the name of Sherman Haxton’s three daughters, all of whom were married. There appear to have been about seven such farms owned either by the daughters or other members of the family. The daughters leased the farm in question to Haxton. The farm was occupied by one Buford Totten under an agreement entered into between Haxton and Totten on March 30,1945.

By the agreement, Haxton “ leased ” the farm to Totten for a term of one year commencing on April 1,1945. The property was to be used for “ farming and allied purposes and for no other purpose ”. (Emphasis supplied.) Haxton, as lessor, agreed‘ ‘ to turn over possession of the premises herein described (subject to the reservations herein mentioned) to the Lessee on commencement of this Lease and Lessee for himself and his heirs agrees to surrender peaceful possession of said premises including all livestock, equipment and crops belonging to the Lessor on the day the Lease terminates without further demand or notice.” Haxton agreed to 6 6 pay all real estate taxes on the farm, to pay for all necessary repairs to the buildings, and to assume all depreciation thereon. * * * To furnish a one-half interest in all livestock except horses, to be kept on farm.” Haxton agreed to “ furnish the necessary milk cooler, milking machine and aerator and water heating equipment for the milk house and repairs for same. * * * To furnish all grass seed * * * and all fertilizers.” Haxton also agreed to pay Totten $10 per month to cover its one-half share of the farm use of Totten’s automobile — Totten was to pay car expenses including gasoline. Haxton agreed to pay one half of the following expenses on any truck owned by Totten and used solely in the operation of the farm: license, insurance, gasoline and oil. If the truck were used for outside work for hire, any payments received therefor were to be considered “asa farm receipt and divided equally as provided elsewhere in this lease.”

Haxton agreed to reimburse Totten monthly “ for regular full-time labor hired and at the rate of 2% per cent of cash monthly wage of one such man for each cow milked during the month above 20. The average of the number of rows milking at the beginning and end of each month shall be considered the number milked during the month. ’ ’

Totten as lessee agreed to “ pay as rental for said farm one-half of all receipts for all produce grown on said farm, the term ‘ produce ’ shall include all crops, livestock, and livestock products. * * * To operate the farm in a workmanlike manner, to plant and harvest crops and do the necessary work about the farm in a good season and to care for the crops and livestock in proper manner and to prevent all unnecessary cost to Lessor or damage to the Lessor’s property. To devote all of his time to the successful operation of the farm.” (Emphasis supplied.) Totten also agreed to furnish “ all horses and farm machinery and repairs for said machinery needed to operate the premises except the dairy equipment mentioned * * * and to furnish a one-half interest in all other livestock to be kept on farm.” Totten was to sow grass seed as furnished by Lessor on fields and in manner designated by Lessor.”

It was mutually agreed between them that “ All livestock * * * to be furnished jointly by both parties and each class of livestock once assembled shall be considered an undivided unit. Except as otherwise provided all livestock used or kept on the farm shall be fed from the undivided produce of the farm and the expense of all feed which it may be necessary to purchase shall be paid by the Lessor and Lessee in equal proportions. All veterinary expenses for jointly owned livestock shall be shared equally.” All expenses “ except those specifically mentioned elsewhere in this lease in connection with the operation of the farm * * * all seeds (except grass seed), the insurance on the undivided personal property on the farm, gasoline, oil for the tractor, spray materials, twine, baling wire, baling, threshing, corn husking, corn picking, silo filling, combining and fuel for these operations shall be paid for by the Lessor and Lessee in equal proportions. ’ ’

They agreed that all “ monies received from the sale of milk shall be paid to the Lessor in his name and the Lessor agrees to divide the same monthly * * *. Unless the Lessor and Lessee otherwise mutually agree, all crops shall he divided by the Lessor and Lessee in equal proportions as soon after they are harvested as is mutually convenient. If, however, the Lessee is indebted to the Lessor, then all sales are to be made in the name of the Lessor and accounted for in the next monthly statement.” The Agricultural Conservation payments are to be considered farm income and divided as set forth in this section. The Agricultural Conservation payments are to be made in the name of the Lessor.” (Emphasis supplied.) The agreement could he terminated for the following year by notice to the other party “ by registered mail on or before December 1st ” of his intention to terminate the lease on the following April 1st.

With respect to those crops which are used in canning, the parties mutually agreed that “ prior to the planting of intensive crops, such as beets, cabbage, carrots, potatoes and sweet corn, a mutually satisfactory arrangement will be worked out whereby the Lessor will pay one-hálf of the cost of such day labor or piece work labor as is needed in the production and harvesting of such crops.” There was a separate oral agreement between Haxton and Totten which covered the raising by Totten of an intensive beet crop for the canning purposes of Haxton also on a share or joint venture basis. That oral agreement was an arrangement separate from the contract which covered the operation of the dairy farm. In our judgment that was one of the “ allied purposes ” other than and as distinguished from “ farming ” as set out in the lease, and, as is evident from finding of fact “ 5 ”, the board so found. While respondents contended that the substance of the oral agreement was the same as a certain special form contract, Exhibit Y, used by Haxton with other growers of beet crops, Totten signed no such contract; there was no proof that he knew of its existence and it was admitted by Haxton’s manager that it was never shown to Totten. Moreover, while Exhibit Y is printed as one of the exhibits, it clearly appears that it was not in fact admitted into evidence.

The record shows that the beets were planted and raised in an area of about ten acres. Haxton’s farm manager, one Britt, was superintendent in charge of the intensive beet crop raising. It was his job to see that the crops were harvested on time, to give advice and suggestions to Totten as to the raising of the crop, the use of the fertilizer and the method of cultivation. Haxton directed Totten as to the time when the beets were to be harvested and at harvest time supplied him with the crates Avhich Avere required for packing the beets. Haxton also furnished a machine to cut off the tops of the beets. The beet crop was set aside exclusively for Haxton to be canned in its factory, in connection Avith the harvesting of the beet crop and its preparation for canning, extra help Avas necessary. Haxton supplied part of the needed help and also authorized Totten to hire extra help for that purpose. Extra laborers were paid for half by Haxton and half by Totten. In this instance Totten paid the claimant $10 for working on October 19th and 20th, half of which was paid by Saxton.

One of the operations to be performed Avith respect to the intensive beet crop for canning, was to top the beets after they had been harvested. That operation consisted of placing the beets with the leaves on them in a beet-topping machine. Thereupon the leaves were removed mechanically and the beet roots discharged into crates.

In Taylor v. Bradley (39 N. Y. 129), the agreement was not as strong as the one before us. There, the agreement under seal provided that the OAvners of the land do by these presents u lease and to farm let ” all said lands to the parties of the second part. Specific proAdsions were made for furnishing seed, the mode of cultivation, the care of the sheep and for the division of the wool produced. Cows were to be furnished equally. The alleged tenant was to have milk for his family out of the undivided stock “ after Avhich, all proceeds [were] to be divided between the parties equally, share and share equal, both as to expenses and profits arising from said farm.” After a rather extended review of the authorities in this country and England, we held that the agreement did not create the relation of landlord and tenant, in which the crops and increase of the farm would be the sole property of the tenant until after a division, Avith the OAvner’s share being tendered as rent. We held that the agreement gave to each of the parties a joint interest in the crops in relation to which they stood as tenants in common. That relation was, Ave said, in the nature of a contract for work and labor, the legal possession of the land being in the owner. Writing for the court, Woodruff, J., said (p. 140): “ * * * the balance of the authorities above cited seems to be, that, notwithstanding the technical terms employed, such an agreement does not amount to a technical lease; that the relation of landlord and tenant is not contemplated, and the portion of the crops reserved to the owner is not rent, but compensation for the use of the land, while the other portion is compensation to the occupier, for his work, labor and services, etc.; and that the legal possession of the land is in the owner, and the two are tenants in common of the crop.” (Emphasis in original.)

And at page 144, he said: ‘ ‘ It was, in view of the decisions, a special contract, partaking somewhat of the nature of an adventure, and entitling the party to the chance of profit or benefit derivable therefrom. * * * ”

Corpus Juris cites the same rule as in the Bradley case [supra) as the accepted rule by the weight of authority. It reads:11 The leasing of a farm for a term of years under an agreement that the owner shall receive in lieu of rent a stipulated portion of the net profits derived from the sale of the crops produced thereon is generally held to create a joint adventure. ” (33 C. J., Joint Adventures, p. 843.) The following cases are in accord: Braddock v. Hinchman (78 N. J. Eq. 270); James v. James (151 Wis. 78); Croft State Bank v. Girardey (117 Kan. 585); Arnold v. De Booy (161 Minn. 255); Pace v. Beckett (69 Col. 90); Quarles v. Kendrick Mercantile Co. (202 Ala. 56); Brown v. Higginbotham (5 Leigh [32 Va.] 633).

The evidence here clearly reveals that no landlord and tenant relationship existed or was intended to exist. The agreement was in the nature of a joint adventure partly in milk, partly in farming and partly in canning. Even the moneys received from milk sales — supposedly one of the chief by-products of this farm — were to be paid in Haxton’s name. Thereafter, Haxton did the dividing. The agreement was the same with respect to the Agricultural Conservation payments. The intensive crops consisted of beets, cabbage, carrots, potatoes and sweet corn. These were products used in Haxton’s canning business. Totten testified that Haxton used the farm for the raising of an intensive beet crop and that the beets from the farm were canned by Haxton. The seed for the beets was furnished by Haxton, and Britt directed Totten as to the time for harvesting the crop. Totten testified he knew that when the beet seed was sowed that it was for Haxton and that he could not sell the crop to any other canning company. In this connection, Britt testified that if any of the operators of the seven Haxton farms sold beets to any other canning company they would lose their contracts.

In connection with the beets, the majority of the Appellate Division held that there existed merely a contract of purchase and sale whereby Totten agreed to deliver ten acres of beets to Haxton. We think that was error which is disclosed when the facts already recited are considered. This transaction, uncontradictedly established by Exhibit X completely disclosed the relationship of the parties. It is entitled “ Beet Settlement ” and is a statement of account between the company and Totten covering the beet crop for the year 1945. Charged to the account is the cost of the beet seed, trucking and taxes amounting in all to $286.72. Credited to the account is the value of the crop at various prices per ton (depending on the size of the beets) totaling $1,757.14. One half of the balance ($1,470.42) is indicated as being due to Totten. Thus the account clearly indicates that the beet operation like the dairy farm operation were two “ allied purposes ”, other and in addition to farming, were joint ventures and the board so found.

In October of 1945, there was a labor shortage in the county, and both Britt and Totten testified that it was understood between Haxton and Totten that each was to engage whatever labor could be secured. This was the substance of the oral mutually satisfactory agreement on labor referred to in the joint adventure agreement. The practice was that if Totten secured extra labor he was required to make out a report to Haxton and it reimbursed him for half the cost. On the other hand, if Haxton hired extra labor it billed Totten for half the cost. The extra labor usually supplied by Haxton were war prisoners and Jamaicans. Britt testified that the reason for billing Totten for the extra labor was “So he would pay insurance.” While there was denial of that by another of respondent’s witnesses, that was a question of fact for the board.

As a party to the joint adventure agreement and in pursuance of the provision of that agreement, Totten hired claimant, an orphan boy who had been placed on the McKinsey farm by the Batavia officials. Claimant testified that he had worked for two days and had received $5 a day. He drove a tractor which had attached to it a mechanically operated beet-topping machine. The topping machine was owned by Haxton. When claimant arrived for work the topping machine had already been coupled to the tractor and he was only required to drive Haxton’s topping machine to various areas in the field where the beets had been harvested and stacked. We should like to emphasize that the tractor was not being used here as a general farm machine. It served only to move the topping machine and was power connected to it, i.e., it was the source of power for the topping machine. Thus the tractor was in truth a part of the topping machine and so a canning instrument rather than a farm instrument. Claimant was engaged in the topping operation which consisted in placing the beets in the machine which mechanically removed the leaves and stems and discharged the beets into crates supplied by Haxton. They were then shipped to the canning factory.

When claimant arrived for work there were six men working in the fields. Two of the men' were regular farm hands. The other four were war prisoners sent to the farm by Haxton to assist in topping the beets. They were sent pursuant to the joint adventure agreement. Admittedly the war prisoners were carried on Haxton’s payroll as employees. Mr. Britt testified that the war prisoners were obtained under the following circumstances: “ The Haxton Canning Company was party to a contract with an agency of the United States Government permitting them to use German prisoners of war for canning and allied purposes, including agriculture. We needed these men to cope with our contract growers [independent growers] to assist them in harvesting their crops, in addition to using them voithin the plant. Consequently, in order to use them to harvest crops of contract growers, we found we could not put them directly on the growers payroll because the growers were not a party to this contract which existed between Haxton Canning Company and that agency of the United States Government. Therefore, to accomplish the purpose of getting the crops harvested, these prisoners of war had to remain on the company payroll, and the cost of their services were billed to contract growers.” (Emphasis supplied.) Britt testified, as already related (supra) that Totten was billed for extra labor “ So he would pay insurance. ’ ’

On the second day of his employment, claimant’s right arm became entangled in the topping machine. When the company’s topping machine was turned over to claimant there was no guard over the driving shaft although after the accident it contained a guard. The guard would have prevented anything from falling on the revolving shaft.

We think the point need not be labored further to show that this case fits squarely within the rule of the Bradley case (supra) and that it is not a case where the increase of the farm was intended to be the sole property of the tenant until the division, with a share being tendered as rent. Thus, there is in fact no basis for the majority view in the Appellate Division that the agreement here constituted a lease and that the parties had elected to treat their relationship as one of landlord and tenant.” (274 App. Div. 144, 147.) As a party to this joint adventure, Haxton had a property interest not alone in the farm as owner, but in the fruits of its production. Haxton’s interest in the beet crop began with the seed and carried through to the canning process. Haxton’s participation in the operation of the farm and the “ allied purposes ” is explained, not only because of its ownership of the farm, but also on the basis of its property interest in the canning factory.

At the time of the accident there was posted at several conspicuous places on the farm where the claimant worked a form of notice to employees that compensation had been secured by Haxton under the Workmen’s Compensation Law of the State of New York. Those notices were furnished by Haxton to Totten who was instructed to post the notices in conspicuous places. A copy of such notice is in evidence as claimant’s Exhibit 5 and the following portion appears over the signature of the company and is pertinent: “ The undersigned employer hereby gives notice that he has conformed to the provisions of the Workmen’s Compensation Law and the rules of the Industrial Board of the State of New York, and that he has secured the payment of compensation to his employees, and the dependents of employees, engaged in employments, enumerated in or brought within the provisions of said law. Such compensation has been secured to such employees in accordance with Section 50 of the Workmen’s Compensation Law, by insuring with Utica Mutual Insurance Company * * (Emphasis supplied.)

There was attempted proof made by Haxton to have it appear that the notice was intended to be limited so that the coverage was only for maintenance workers sent by Haxton to Totten for the purpose of keeping the premises in repair. The board was not required to believe that such was the fact when the whole notice was addressed generally to all employees and there was no limitation stated therein. The very fact that notices were so posted may well have been considered by the board as an indication on the part of Haxton that the workers in the fields who prepared the intensive beet crop for canning were in truth and fact employees of Haxton.

Thus, there was substantial evidence to support the board’s finding that claimant was an employee of Haxton. Totten raised and topped the beets as an agent or operator for Haxton under joint venture, written and oral, agreements between the parties. Haxton supervised and controlled the entire beet operation. The crop had to be harvested at a definite time and delivered exclusively to Haxton. Haxton provided the seeds, topping machine and crates for carrying the beets to the canning factory. Its superintendent, Britt, advised on “ raising of seed, fertilizer, and methods of cultivation.” It assisted in preparing the crop for canning by arranging for extra help in topping and crating, and it authorized Totten to hire additional help for that purpose. Pursuant to that authority Totten hired the claimant and Haxton paid half of claimant’s wages. Further, its posting of notices in and about the farm to the effect that as an employer it had secured compensation insurance is another indication that claimant was one of its employees. With that evidence in the record the Appellate Division should not have reversed the board’s finding that claimant was employed by the company.

On the question of whether claimant was a farm laborer, we have decided that work for a farmer on a farm does not of necessity constitute farm labor within the meaning of the Workmen’s Compensation Law. (Matter of Butterfield v. Brown, 287 N. Y. 623.)

In considering the question here, we must have clearly in' mind the fact that the canning company itself, Haxton, was actually engaged m the operation of the farm and the beet-topping operation. It was in control as tenant in common of the farm and the management of it and engaged laborers, some of whom were actually dispatched from its factory to perform the topping operation for its canning business. The topping operation was an incident of the canning business — at least the board could and did so find — and all the laborers engaged therein were performing services in a hazardous employment, for pecuniary gain within the provisions of the Workmen’s Compensation Law. (Matter of Butterfield v. Brown, supra.) That the topping process was a vital step in the canning is illustrated by the fact that Haxton owned and furnished both the crates and the topping machine. It was not necessary that the topping of the beets be performed by Haxton in the field. The topping operation could have been performed by Haxton with the same Haxton machinery on the premises of its canning factory. Certainly, if it were done in the factory rather than in the field, there could be no doubt that the work was incidental to the canning business, a hazardous employment within the meaning of section 3, subdivision 1, group 1, of the Workmen’s Compensation Law. The topping operation, although performed by Haxton in the fields, was just as vital to the canning process as peeling, skinning, cooking or boiling of beets. While performing that work, claimant ivas not engaged in any service connected Avith the cultivation of the soil, the handling or care of the crop while in the soil or with its harvest. Those are natural incidents of farming. Neither did he do any work in connection with the dairy farm. He was employed to drive a tractor to which was connected Haxton’s topping machine and to assist in throAving into it beets which had already been harvested and which Avere discharged from the machine into Haxton’s crates. That work Avas a necessary step in the canning operation because the beets could not have been canned without topping. The hoard could and did find that the canning operation had begun Avith the topping of the beets in the field.

Section 21 of the Workmen’s Compensation Law entitled £ 1 Presumptions ’ ’ provides that:

In any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of substantial evidence to the contrary
1. That the claim comes. within the provision [s] of this chapter; * * (Emphasis supplied.)

Claimant was thus entitled to the benefit of the presumption that his claim came within the provisions of the statute, and the notices posted thereunder, and the board was required to find that claimant was doing work incidental to the canning business and that he was not a farm laborer unless there was substantial evidence to the contrary. Here there was no evidence that claimant was employed to work or did in fact work in connection with the tilling of the soil or in cultivating and harvesting crops. The work which he was engaged in exclusively was to tow the topping machine and assist in its operation. The board whose findings are final under section 20 of the Workmen’s Compensation Law was justified in finding as it did that claimant was not a farm laborer at the time of the accident but was an employee of Haxton.

Haxton and the carrier rely on Matter of Davis v. Ryan, (287 N. Y. 778). There the employer operated a milk pasteurizing and bottling plant in the city of Htica. He also operated a dairy farm outside of the city, in connection with which he employed the claimant. Claimant testified that he did general' farm work for his employer, and that this work was entirely confined to the farm. While operating a saw on the farm for the purpose of cutting wood, he was injured. The Appellate Division held that there was no evidence to sustain the finding of the Industrial Board that the work in which the claimant was engaged at the time he was injured was incidental to the pasteurizing and bottling plant and that at such time he was not a farm laborer. We affirmed. It is clear that that ease is not applicable here. There claimant testified that he did general farm work and when injured he was engaged in such work. Certainly it is apparent that cutting wood on a farm by a general farm hand is not incidental to operating a pasteurizing and bottling plant. Here claimant was injured while performing an operation needed only for canning, the business of his employer.

The following decisions support that conclusion: In Matter of Moreno v. Halstead Canning Co. (258 App. Div. 832, motion for leave to appeal denied 282 N. Y. 809) a similar award of double compensation was made against the employer under section 14-a of the Workmen’s Compensation Law by the State Industrial Board for a violation of section 130 of the Labor Law. Claimant, a child of ten years of age, was permitted by the canning company to help her mother pick beans for the canning factory and claimant was injured when she was thrown from a truck which was transporting her from one field to another.

In Matter of Hamilla v. Gade (278 N. Y. 502) claimant was employed generally as a farm laborer. His employer, however, operated a small machine for grinding grain for himself and others. While operating the machine the claimant was injured. We held that when a farmer engages in such a business it cannot be said that employees engaged in such business are farm laborers. It will be noted that there the claimant was employed generally as a farm laborer and we held he was removed from that category while operating his employer’s grinding machine. Here the claimant was employed by Totten and Haxton exclusively for work in connection with the topping machine.

In Matter of Baum v. Weldon (294 N. Y. 464, supra) the employer owned a farm on which he conducted a business of buying, selling and baling hay. Claimant, a carpenter, was employed by the employer to remove metal sheeting from a building in the city of Hudson which the latter intended to reuse on a building on his farm. The board, in making an award for the employee’s death, held that his employment was not incidental to any.farm operation. The Appellate Division annulled the award on the ground that claimant was working as a farm laborer. After making reference to section 20 of the Workmen’s Compensation Law we reversed (per Loughran, J.) and reinstated the award holding that the board’s findings were at least fairly warranted by the evidence.” (P. 467.)

In Matter of Lewkowitz v. Cohen (210 App. Div. 803) the employer owned and operated a farm of 120 acres and during the summer months kept about 40 boarders. The claimant was his year-around farm hand. One day in July the claimant drove a farm wagon into town to obtain feed for the employer’s livestock. TMs was one of Ms usual duties. At the railroad station he picked up the trunk of one of the summer hoarders. He was injured on the return trip. It was urged against the award that the claimant was a farm laborer. It was pointed out in support of the award that the employer had two lines of business, farming and operating a hotel, in both of which the claimant was engaged when injured. The award was affirmed.

In Matter of Vincent v. Taylor Bros. (180 App. Div. 818) claimant lost his right arm while engaged in feeding bundles of rye into a combined thresher and cleaner machine. The award was upon the ground that the employer was engaged in the milling business. The Appellate Division reversed the award upon the ground that in view of the stipulation settling the case on appeal, it could not be ascertained whether the record contained all the evidence on the question of whether the employer was actually engaged in the milling business. However, on the question of whether claimant was a farm laborer, the court said (p. 819): The appellants’ contention, that the claimant wMle feeding bundles into the macMne was a farm laborer and hence not entitled to compensation, cannot be sustained. (White v. Loades, supra [178 App. Div. 236].) It is not claimed that the claimant had anything to do with carrying on the farm where the accident occurred.” Here, claimant’s sole duties were driving the topping machine to the various areas in the fields where the beets were stacked and fed into Haxton’s topping machine.

In Matter of Clarke v. Roger I. Sherman, Inc. (184 App. Div. 921) the employer raised beans for canning in its own canning factory. The claimant was injured while gathering beans from the field to take to the employer’s factory to be canned. The board held that claimant’s work was incidental to the employer’s canning business and the Appellate Division affirmed. There the claimant was a regular employee in the canning factory and was sent to the farm to pick the beans. Here the war prisoners sent by Haxton from its plants to assist in the topping operation were also regular employees and it seems to us that the fact that they were regular employees throws light on the character of the work performed by them and claimant, i.e., it was an operation incidental to Haxton’s canning business.

On the question of the characterization of acts performed by the injured employee, we have held in Matter of Larsen v. Paine Drug Co. (218 N. Y. 252, 256) that where “ an employee is injured while performing an act which is fairly incidental to the prosecution of a business and appropriate in carrying it forward and providing for its needs, he or his dependents are not to be barred from recovery because such act is not a step wholly embraced in the precise and characteristic process or operation which has been made the basis of the group in which employment is claimed.”

We think it is apparent in the cases cited and those relied on by Haxton, that it is difficult on the facts in each case to draw a definite line of demarcation on the question of farm labor. Each case must stand upon its own facts and indeed, support and justification may be found in each for more than one inference and conclusion by the trier of facts. We have here a finding of fact by the board, and it seems to us, in view of section 20 of the Workmen’s Compensation Law that the decision of the board shall be final as to all questions of fact, that if the board’s finding is supported by any rational view of the evidence, we cannot, and should not, substitute our own inferences and conclusions drawn therefrom for those of the board. (See Matter of Baum v. Welden, 294 N. Y. 464, supra.)

The order of the Appellate Division should be reversed and the award of the Workmen’s Compensation Board affirmed, with costs, upon the ground that there is evidence to sustain the finding that the claimant was engaged in a hazardous employment for pecuniary gain within the provisions of the Workmen’s Compensation Law.

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

Order affirmed.


source: Caselaw Access Project

author: Conway, J. Desmond, J.

license: Public Domain

text:
    Delaware, Lackawanna & Western Railroad Company, Respondent, v. Marion J. Slocum, as General Chairman of Lackawanna Division No. 30 of the Order of Railroad Telegraphers, Appellant, et al., Defendants.
    Argued June 2, 1949;
    decided July 19, 1949.

      Manly Fleischmann, John F. Dwyer, Leo J. Eassenauer and J ames W. Sack for appellant.
    I. The jurisdiction of the tribunals
    established by the Bailway Labor Act enacted under the authority of the commerce clause of the Federal Constitution is plenary and exclusive with respect to the present controversy. (Texas & New Orleans R. R. Co. v. Brotherhood of Ry. and S. S. Clerks, 281 U. S. 548; Virginian Ry. Co. v. System Federation No. 40, 300 U. &. 515; Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U. S. 711; New York Post Corp. v. Kelley, 296 N. Y. 178; Bethle

      hem Steel Co. v. New York State Labor Relations Bd., 330 U. S. 767; Moore v. Illinois Central R. R. Co., 312 U. S. 630; General Committee v. Missouri-Kansas-Texas R. R. Co., 320 U. S. 323; La Crosse Tel. Corp. v. Wisconsin Employment Relations Bd., 335 U. S. 866; California v. Zook, 336 U. S. 725; Gilvary v. Cuyahoga Valley Ry. Co., 292 U. S. 57; Cloverleaf Butter Co. v. Patterson, 315 U. S. 148; Adams Express Co. v. Croninger, 226 U. S. 491; Order of Ry. Conductors v. Pitney, 326 U. S. 561.) II. The trial court’s retention of jurisdiction over a controversy which should have been referred to the Railroad Adjustment Board constituted an abuse of judicial discretion as a matter of law. (Colson v. Pelgram, 259 N. Y. 370; Washington Term. Co. v. Boswell, 124 F. 2d 235; James v. Alderton Dock Yards, 256 N. Y. 298; Meeker & Co. v. Lehigh Valley R. R. Co., 236 U. S. 412; Baldwin v. Scott County Milling Co., 307 U. S. 478; Railroad Telegraphers v. Railway Express Agency, 321 U. S. 342; Woollard v. Schaffer Stores Co., 272 N. Y. 304; York v. Conde, 147 N. Y. 486, writ of error dismissed sub nom. Conde v. York, 168 U. S. 642; O’Connor v. Hudson Riv. Day Line, 269 App. Div. 960, 296 N. Y. 501.)

      Pierre W. Evans and Rowland L. Davis, Jr., for respondent.
    The Supreme Court had jurisdiction to determine the matter in controversy and properly exercised such jurisdiction. (Moore v. Illinois Central R. R. Co., 312 U. S. 630; Swartz v. South Buffalo Ry. Co., 44 F. Supp. 447; Louisville & Nashville Ry. Co. v. Bryant, 263 Ky. 578; Evans v. Louisville & Nashville Ry. Co., 191 Ga. 395; Burton v. Oregon-Washington R. & Nav. Co., 148 Ore. 648; Wooldridge v. Denver & R. G. W. R. Co., 191 P. 2d 882 [Col.]; Southern Ry. Co. v. Order of Ry. Conductors of Amer., 41 S. E. 2d 774 [S. C.]; New York Post Corp. v. Kelley, 296 N. Y. 178; German Masonic Temple Assn. v. City of New York, 279 N. Y. 452; So cony-Vacuum Oil Co. v. City of New York, 247 App. Div. 163, 272 N. Y. 668.)
   Conway, J.

Defendant Marion J. Slocum appeals by our permission from a unanimous judgment of the Appellate Division, Third Department, affirming a declaratory judgment of the Supreme Court, Chemung County, which declared that three “ crew-callers ” in the Elmira yard office of the plaintiff railroad “ and the positions held by them and the work assigned to them ” are within plaintiff’s agreement with the above-named clerks’ union. ' The Supreme Court also held that the telegraphers’ union and its meiobers were estopped by their acts and conduct as well as by their agreements from claiming the 1 crew-callers ’ ’ positions or any of the work assigned to those positions.

While the telegraphers’ union (which is the only appellant) does not concede that the decision below was correct on the merits ”, it has admittedly only asked for a review of two of its contentions below, viz.:

1. That the National Bailroad Adjustment Board ” (hereinafter called the Board) has exclusive jurisdiction under the Bailway Labor Act (U. S. Code, tit. 45, §§ 151 et seq.) to determine this controversy, so that the Supreme Court was without power to do so, and
2. Assuming the Supreme Court has jurisdiction, its exercise of that jurisdiction was an abuse of judicial discretion as a matter of law.

The facts which have been affirmed by the Appellate Division are as follows:

Defendants are the principal officers of the local units of the above-named unions which are the collective bargaining agents for certain employees in the Elmira yard of the railroad. Each union has a written agreement with the railroad. Each contract contains a general provision, known as a “ Scope Buie ’ ’, which defines those kinds of work to be performed by members of the union, and a provision listing those positions in the Elmira yard which are to be held by employees represented by the union.

This controversy arose over the work performed by three crew callers in the Elmira yard office. Those employees were members of the clerk’s union and their positions were listed in the contract between that union and the railroad. The telegraphers’ union contended that some work performed by the crew callers was covered by the scope rule of the telegraphers’ contract, and on June 4, 1942, the telegraphers’ chairman requested that the work in question be reassigned to members of the telegraphers’ union and that retroactive pay for past work be paid to men on the telegraphers’ extra-list. The railroad has maintained that none of the work performed by the crew callers was covered by the scope rule of the telegraphers’ contract. The chairman of the clerks’ union has consistently maintained that the work of the crew callers was covered by the clerks’ contract, and that dny telegraphers’ duties which they might be performing should be reassigned.

The chairman of the telegraphers’ union had pressed its claim in conferences and correspondence with various officials of the railroad, including the general superintendent and the general manager. At this point, on March 3, 1944, the railroad commenced this action against the general chairmen of the two unions for a judgment declaring the respective rights and obligations of the railroad and the unions under the collective bargaining agreements. The complaint alleged that a controversy existed between the telegraphers’ union and the clerks’ union as to whether the work of the crew callers was covered by the railroad’s contract with the telegraphers or by the contract with the clerks, and the railroad believed that all work performed by the crew callers was covered by the contract with the clerks.

It may be pointed out that after the commencement of this action the defendant telegraphers’ union made an application at Special Term for an order approving a bond and directing the removal of the action to the United States District Court. The application was denied. (183 Misc. 454.)

Thereafter a bond was submitted to a Judge of the United States District Court for the Western District of Mew York and approved by him. The railroad appeared specially and moved to remand the case to our Supreme Court, and the telegraphers’ union moved to dismiss the action. The motion to dismiss was denied and the railroad’s motion to remand the case to our State court was granted. (56 F. Supp. 634.)

On February 5, 1945, the telegraphers ’ union made a motion at Special Term to dismiss the complaint which was denied in an unreported memorandum. On appeal to the Appellate Division the order was unanimously affirmed in an opinion reported in 269 Appellate Division 467.

As already noted, the action was tried before a Justice of the Supreme Court without a jury, and upon his findings and conclusions a judgment was entered which sustained the railroad’s construction of the contracts and held that the telegraphers’ union was estopped from claiming the positions in controversy. The Appellate Division has affirmed in a Per Curiam opinion. (274 App. Div. 950.)

In each of the above five instances, the telegraphers’ union urged that the State Supreme Court had no jurisdiction to entertain the action and that plaintiff’s only recourse was to pursue its administrative remedy under the Railway Labor Act. Thus, that contention has been rejected on five occasions and by all the judges who have examined it.

As was pointed out in several of the above-mentioned opinions, plaintiff seeks no rights under the Railway Labor Act, but brings this action only for a construction or interpretation of the contracts between the parties. (183 Misc. 454; 56 F. Supp. 634, 637; 274 App. Div. 950.)

The Railway Labor Act provides that among its “ General purposes ” is the prompt and orderly settlement of all disputes between railroads and their employees. It divides disputes into two classifications as follows: (1) those 11 concerning rates of pay, rules, or working conditions ” and (2) those “ growing out of grievancés or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions. ’ ’ (U. S. Code, tit. 45, § 151a, els. [4], [5].) (Emphasis supplied.)

The parties to all disputes are initially required to attempt to negotiate their differences by Conferences between their respective representatives. (U. S. Code, tit. 45, § 152, subds. First, Second.)

Beyond the initial stage of negotiation and conference the act provides for different methods of settlement for the two classes of disputes. As pointed out in Elgin, Joliet & Eastern Ry. Co. v. Burley (325 U. S. 711, 723) the first type “ relates to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.” Concerning that class of disputes the act provides first for mediation before the National Mediation Board, if that fails, then voluntary arbitration; and if that fails, conciliation by Presidential intervention. (U. S. Code, tit. 45, §§ 155, 157, 160; see Burley case, supra, p. 725.)

The second class of disputes “ contemplates the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or to create a new one.” (Burley case, supra, p. 723.) All parties and the courts below agree that the instant case is within the second classification, and that the course prescribed by the act for the settlement of this type of dispute is submission to the Railroad Adjustment Board. The language of the act is as follows (U. S. Code, tit. 45, § 153, subd. First, par. [i]): “ (i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on June 21, 1934, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing, to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.” (Emphasis supplied.) It will be noted that the wording of the statute with respect to the submission of disputes to the Board is “ may be referred ” which is clearly not mandatory.

Moreover, the Supreme Court of the United States has held in Moore v. Illinois Central R. R. Co. (312 U. S. 630) that the jurisdiction of the Board is not exclusive. In holding that a union member, who sued the railroad for wrongful discharge in violation of a collective bargaining agreement, did not first have to exhaust his administrative remedies under the Railway Labor Act, the court said (p. 635-636): “ It is to be noted that the section pointed out, § 153 (i), as amended in 1934, provides no more than that disputes ‘ may be referred ... to the . . . Adjustment Board '. . . ’. It is significant that the comparable section of the 1926 Railway Labor Act (44 Stat. 577, 578) had, before the 1934 amendment, provided that upon failure of the parties to reach an adjustment a * dispute shall be referred to the designated Adjustment Board by the parties, or by either party . . . ’ This difference in language, substituting ‘ may ’ for shall,’ was not, we think, an indication of a change in policy, but was instead a clarification of the law’s original purpose. For neither the original 1926 Act, nor the Act as amended in 1934, indicates that the machinery provided for settling disputes was based on a philosophy of legal compulsion. On the contrary, the legislative history of the Railway Labor Act shows a consistent purpose on the part of Congress to establish and maintain a system for peaceful adjustment and mediation voluntary in its nature. The District Court and the Circuit Court of Appeals properly decided that petitioner was not required by the Railway Labor Act to seek adjustment of his controversy with the railroad as a prerequisite to suit for wrongful discharge.”

Appellant argues in its brief as it did on the oral argument that recent cases in the Supreme Court of the United States demonstrate that the Moore case (supra) “ will be limited in the future to the precise facts that were there considered ” and that “ it may confidently be predicted that the Supreme Court will hold the jurisdiction of the statutory tribunals to be exclusive in the absence of extraordinary circumstances calling for the intervention of equitable remedies.” However, we may not speculate as to what the Supreme Court will hold in the future, and until the Moore case is limited to its facts or overruled, we should follow it, as have the courts below. (183 Misc. 454, 456-457; 269 App. Div. 467, 469; 274 App. Div. 950.)

Major reliance is placed by appellant upon Order of Ry. Conductors v. Pitney (326 U. S. 561). That case not only does not support appellant’s position, but on the question of the jurisdiction of the courts, it is clearly to the contrary. There, a proceeding for reorganization of a railroad under section 77 of the Bankruptcy Act was pending in the District Court, and the trustees entered into an agreement with the union representatives of £< yard conductors ” that five freight trains which had been manned by £< road conductors ” should thereafter be manned by “ yard conductors ”. The representative of the ££ road conductors ”, relying on earlier agreements, and alleging that the proposed displacement violated section 6 of the Railway Labor Act which prohibited such changes without thirty days’ notice and action by the Mediation Board, petitioned the court to instruct the trustees not to displace the road conductors and to .enjoin such action as long as the earlier agreements were not altered in accordance with the Railway Labor Act. The District Court determined that the “ yard conductors ” were entitled to man the trains in question and dismissed the petition on the merits.

The Circuit Court of Appeals held that the petition should be dismissed on jurisdictional grounds because it thought that the remedies of the Railway Labor Act for the settlement of such disputes were exclusive, and that if it was mistaken on the' jurisdictional question, then it agreed with the District Court that the petition should be dismissed on the merits. (145 F. 2d 351.)

The United States Supreme Court in reversing held that the District Court 11 might act in two distinct capacities.” First, it might do so as a judicial body in “ possession of the business ” or a “ carrier ” within the meaning of section 1 of the Railway Labor Act. As such it would have to interpret the contract to exercise its jurisdiction under the Bankruptcy Act to control its trustee and preserve the debtor’s estate. Thus, the order was affirmed insofar as it constituted instructions to the trustees, since that action was within the supervisory power of the District Court, as a bankruptcy court, and amounted to no more than a decision by the carrier itself. However, those instructions would not settle the dispute, and in its second capacity the reorganization court would have to act in the further capacity of a tribunal empowered to grant the equitable relief sought ” (p. 565), even though such action required an interpretation of the contracts. However, Congress having created the Board as an “ agency especially competent and specifically designated to deal with ” such a dispute, the court should exercise equitable discretion to give that agency the first opportunity to pass on the issue. Certainly the extraordinary relief of an injunction should be withheld, at least, until then.” (P. 567.) Accordingly the dismissal of the petition was stayed so as to give an opportunity for application to the Adjustment Board for an interpretation of the agreements.” (P. 568.)

Thus the Pitney case (supra) recognized the concurrent jurisdiction of the board and the courts to interpret the contracts, but held that the equity court in the exercise of its discretion should have stayed its hand under the circumstances of that case which included the fact that the court was acting in two capacities.

Moreover, there are a number of instances since the passage of the act where the courts of other States have taken jurisdiction of controversies involving the construction of agreements between a'railroad and its employees. (Evans v. Louisville & Nashville R. R. Co., 191 Ga. 395; Southern Ry. Co. v. Order of Ry. Conductors of America, 210 S. C. 121; Wooldridge v. Denver & R. G. W. R. Co., 118 Col. 25; Louisville & Nashville R. R. Co. v. Bryant, 263 Ky. 578; Burton v. Oregon-Washington R. R. & Navigation Co., 148 Ore. 648. See Swartz v. South Buffalo Ry. Co., 44 F. Supp. 447.)

Thus, the challenge to the jurisdiction of the Supreme Court must fail, and the only remaining question is whether the failure to dismiss the action was an abuse of discretion as a matter of Law.

We think not. In New York Post Corp. v. Kelley (296 N. Y. 178, 189-190) we said recently: Where no mandatory statute is applicable, the Supreme Court determines its own practice. (Judiciary Law, § 82 [now § 83].) Eule 212 of the Eules of Civil Practice reads as follows: ‘ Eule 212. Jurisdiction discretionary. If, in the opinion of the court, the parties should he left to relief by existing forms of actions, or for other reasons, it may decline to pronounce a declaratory judgment, stating the grounds on which its discretion is so exercised. ’ This court is one of review, and we may not reverse the orders because of the exercise of the discretion committed to the Supreme Court through legislative provision unless we may say that there was an abuse of discretion as a matter of law. * * * The following, from Rockland Light & Power Co. v. City of New York (Lehman, Ch. J.), supra, p. 50, is apposite here: The sufficiency of the complaint has been sustained as a pleading. The order accomplishes nothing more. The order must be affirmed, regardless of the merits of the controversy or the scope of the plaintiff’s rights, if we conclude that the complaint in an action for declaratory judgment should not he dismissed as “ matter of law ” where the facts alleged show the existence of a controversy concerning “ rights and legal relations ” and where it appears that the discretionary and extraordinary powers of the court have been invoked for a sufficient reason.’ ”

While the Eailroad. Adjustment Board may be peculiarly qualified to determine this controversy, sufficient reason ” appears for the Supreme Court to have exercised the discretion committed to it by the Legislature to pronounce a declaratory judgment.

First, there'is at least some doubt whether the procedure under the Eailway Labor Act is adequate to bind all three parties to this action. The Justice at Special Term did not think so when he denied appellant’s application for removal of the action to the Federal District Court. (183 Misc. 454.) Likewise, the Federal District Judge in remanding the case back to our Supreme Court said (56 F. Supp. at p. 636): “ The Eailway Labor Act (Sec. 153 First Division (i), supra, relates to ‘ the disputes between an employee or groups of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, * f *.’ The dispute here asserted is between the Order of Eailroad Telegraphers and the Brotherhood of Eailway and Steamship Clerks and not between the plaintiff and either of said organizations; and no dispute here arises concerning rates of pay, rules, or working conditions. ’ While it is true that either of the aforesaid organizations could bring proceedings under the aforesaid provisions of the Eailway Labor Act, it is not obligatory upon either of these so to do nor is there any way in which the plaintiff can compel the initiation of such a proceeding. The Eailway Labor Act does not provide that the plaintiff can bring the claims jointly before the Eailroad Adjustment Board for determination or that the plaintiff can make the second association a party to the proceedings so that it will be bound by decision rendered by the National Adjustment Board.”

In denying appellant’s motion to dismiss the complaint which was made on the ground that the dispute should be decided by the Adjustment Board, the Trial Justice then sitting at Special Term also decided 1‘ that it is questionable if the relief there afforded is adequate. ’ ’

While the United States Supreme Court in the Pitney case (supra), held that the equity court should have refrained from deciding the controversy between the two unions and the railroad until an application for an interpretation of the agreements was made to the Adjustment Board, the question of whether a proceeding in the nature of an interpleader was available before the Board does not appear to have been specifically raised and decided.

Secondly, while the dispute here reached the initial conference stage, no proceeding was ever instituted before the Adjustment Board. This is not a case where a declaratory judgment is being sought to stay the hand of an administrative agency so that the courts may pass on a question of law as to the jurisdiction of the agency, e.g., New York Foreign Trade Zone Operators v. State Liq. Authority (285 N. Y. 272); Dun & Bradstreet v. City of New York (276 N. Y. 198); Aerated Products Co. v. Godfrey (263 App. Div. 685, revd. on other grounds 290 N. Y. 92); Booth v. City of New York (296 N. Y. 573). Nor is it like New York Post Corp. v. Kelley (supra) in the sense that the court is being asked to pass upon a question of fact upon which depends the jurisdiction of the administrative board while a proceeding is pending before the board.

Rather this is a case where there is at most concurrent jurisdiction by the Adjustment Board and the State Supreme Court, over the parties and the subject matter, and before any proceeding has been instituted before the Board, the plaintiff has seen fit to ask merely for an interpretation of the agreements between the parties in an action for a declaratory judgment in the Supreme Court. Plaintiff is not attempting to oust the Board of jurisdiction by urging a question of law or fact that the Board is without jurisdiction. In Woollard v. Schaffer Stores Co. (272 N. Y. 304, 311-312) we said: “ The Supreme Court may, of course, exercise its discretion in refusing to proceed to a declaratory judgment when other remedies are adequate and that is all we held in Newburger v. Lubell (257 N. Y. 383). When, however, another action between the same parties, in which all issues could be determined, is actually pending at the time of the commencement of an action for a declaratory judgment, the court abuses its discretion when it entertains jurisdiction. (Colson v. Pelgram, 259 N. Y. 370.) We have never gone so far as to hold that, when there exists a genuine controversy requiring a judicial détermination, the Supreme Court is bound, solely for the reason that another remedy is available, to refuse to exercise the power conferred by section 473 and rule 212. Here a genuine controversy existed, and the parties were unable to determine definitely the nature which the litigation should assume. * * * The numerous issues arising from the pleading are sufficient to confer upon the court power to entertain jurisdiction and to decide them all in this single action. While it had discretion to refuse jurisdiction it was not hound so to do.”

Thirdly, there is justification for a retention of jurisdiction by the Supreme Court because as stated by the Trial Justice when he denied appellant’s motion to dismiss: The controversy arose out of work performed at Elmira and there seems to be no reason why the plaintiff should be compelled to go to the National Railroad Adjustment Board at Chicago, with the attendant delays, especially in view of the fact that it is questionable if the relief there afforded is adequate. The condition of the court calendar here, where the controversy arose, is such that the case can be disposed of expeditiously and at the convenience of the respective parties, affording full, adequate and prompt relief.”

The Appellate Division in affirming that order likewise said (269 App. Div. 467, 469): The courts of this State furnish a more convenient forum for the trial of the issues than the statutory board which functions in a distant State. Under- such conditions, plaintiff should not be denied the right to litigate • here and obtain a judgment declaratory of its obligations under the contracts. (Rockland Light and Power Co. v. City of New York, 289 N. Y. 45; Woollard v. Schaffer Stores Co., 272 N. Y. 304.)”

Finally, the courts of other States have awarded declaratory relief in similar cases. (Louisville & Nashville R. R. Co. v. Bryant, 263 Ky. 578, supra; Southern Ry. Co. v. Order of Ry. Conductors of America, 210 S. C. 121, supra.)

The judgment should be affirmed, with costs.

Desmond, J.

(dissenting). By this declaratory judgment the Supreme Court of this State, has, at the suit of plaintiff railroad company, construed the labor agreements of plaintiff with two defendant railway unions and, in an attempt to settle a jurisdictional dispute between those unions, has held that under such agreements one of the unions (Brotherhood of Clerks, etc.) is entitled to claim, as against the other (Railroad Telegraphers), certain jobs in the service of plaintiff railroad company at its Elmira, N. Y., yard office. The Supreme Court of the United

States, however, ruled, in Order of By. Conductors v. Pitney (326 U. S. 561) that under the applicable Federal statute (Railway Labor Act; U. S. Code, tit. 45, § 151 et seq.) such determinations are not the business of the courts but of the Railroad Adjustment Board set up by Congress in that statute. The Pitney case (supra) as I read it, makes this plain and clear. The Supreme Court said (326 U. S., p. 566): Not only has Congress thus designated an agency peculiarly competent to handle the basic question here involved, but as we have indicated in several recent cases in which we had occasion to discuss the history and purpose of the Railway Labor Act, it also intended to leave a minimum responsibility to the courts.” The basic question in the Pitney case was exactly the question here, and the Supreme Court said in so many words that the United States District Court should not have interpreted the labor agreements for the purposes of adjudicating the dispute between the unions and the railroad, but should have left all that to the Board. The Supreme Court pointed out (326 U. S. 566) that in order to decide that basic question, the court would have to interpret the collective bargaining agreements in dispute, and that such interpretation involved more than the mere construction of a document but had to be made in the light of other agreements and in the light of usage, practice and custom. In two recent cases, the Eighth Circuit Court of Appeals has construed the Pitney decision to mean just that, and in each instance the Supreme Court denied certiorari (Order of R. R. Telegraphers v. New Orleans, Texas Mexico Ry. Co., 156 F. 2d 1, certiorari denied 329 U. S. 758; Missouri-Kansas-Texas R. R. Co. v. Randolph, 164 F. 2d 4, certiorari denied 334 U. S. 818). A number of Federal District Court opinions are of like tenor (see for instance Illinois Central R. R. Co. v. Brotherhood of R. R. Trainmen, 83 F. Supp. 930, 933).

In the Pitney case (supra), the Federal District Court, sitting-in bankruptcy, had construed contracts of the railroad with the two unions involved as meaning that one of those unions should have the contested jobs, and the petition of the other union Avas, accordingly, dismissed. The Circuit Court of Appeals (145 F. 2d 351) reversed the District Court, holding that the petition should be dismissed not on the merits, but on jurisdictional grounds, holding that the remedies of the Railway Labor Act were exclusive. The Supreme Court then took the Pitney case in certiorari. It said (326 U. S. 567) that the District Court could not interpret the agreements but could do no more than hold the case until the Adjustment Board should hand down such an interpretation, at which time, the Supreme Court said, the District Court might, depending on the situation thqn existing, use its discretionary powers to grant an injunction if appropriate. In the case we have before us, the trial court granted no injunction or other relief — its judgment is nothing more or less than a declaration as to the meaning of these collective bargaining agreements and their application to the facts. In other words, the trial court did, here, exactly what the Supreme Court said it was improper for any court to do: take unto itself a function reserved by Congress to the Adjustment Board. It does not seem to me to make any great difference whether we label this 6 6 want of jurisdiction ” or abuse of discretion Whatever be the appropriate label, this declaratory judgment cannot, under the rule of the Pitney case, stand, and we are just as much bound to reverse for this kind of abuse of discretion (see Colson v. Pelgram, 259 N. Y. 370, 377) as for an absolute lack of jurisdiction. The fundamental question here is the one stated by the Supreme Court under different circumstances in California v. Zook (336 U. S. 725, 729): does the state action conflict with national policy? ” The national policy here has been formulated by Congress and declared by the Supreme Court. The supremacy clause (U. S. Const., art. VI) and ordinary comity (Bourjois Sales Corp. v. Dorfman, 273 N. Y. 167, 171) prevent the State courts from following a different one, of their own making.

It is of course true that, in the Pitney case (supra), the Supreme Court dealt with another, separate, question besides the one above set out. The railroad, in the Pitney case, was in bankruptcy and was being operated by trustees appointed by the District Judge, so that, besides its ordinary judicial function, the District Court had the power and the duty to instruct the trustees in the running of the railroad. The Supreme Court held that, acting in the latter-role, the District Court had supervisory power to instruct its trustees ” as to these contracts. The Supreme Court, however, was at pains to point out that the court’s instructions to its trustees were no more binding on the Adjustment Board than the action of any other carrier ’ ’ and said flatly that despite the court’s power and duty to give such instructions, it 16 should not have interpreted the contracts for purposes of finally adjudicating the dispute between the unions and the railroad ”, and ordered the District Court to hold the case until the union’s petition could go to the Adjustment Board and the agreements could be there interpreted (326 U. S., pp. 567, 568). The Pitney opinion, therefore, deals with two separable and separated questions, and its holding that the dispute had to go to the Adjustment Board was not based on, or in any way affected by, the circumstance that the particular railroad was being operated by agents of the District Court. Justice Rutledge’s dissenting opinion in the Pitney case agrees that the matter of interpretation was not for the court, but goes further and urges that the court should grant a temporary injunction to preserve the status quo in all respects until the Adjustment Board should hand down its decision.

Moore v. Illinois Central R. R. Co. (312 U. S. 630) decided five years before the Pitney case (supra) — the majority opinions in •both cases were written by Justice Black — is not mentioned in the Pitney opinions and does not conflict at all with the Pitney rule. The Moore case was, as the Supreme Court itself described it in Order of R. R. Telegraphers v. Railway Express Agency (321 U. S. 342, 348) “ a common-law action to recover wages”. In other words, Moore, a railroad employee, brought, as was his absolute right, a common-law action for damages for an alleged wrongful discharge. The Supreme Court held that the Railway Labor Act grant of exclusive jurisdiction to the Board to construe railway labor contracts, did not prevent the bringing of such a suit and that, once the suit was properly before the court, it had to be decided; and, if the course of decision required an interpretation of contracts, the common-law court could make such a construction. But when, as here, the sole purpose of the suit, and the sole judgment entered, is a statement of the meaning of such contracts, then there is nothing that a court may or should do except see to it that the dispute goes to the Adjustment Board where it belongs. If the Supreme Court in the Pitney case had concluded that the Pitney situation was the same as the Moore situation except for the circumstance that the railroad in the Pitney case was in bankruptcy, the court certainly would have said so, and not let the Moore case go unmentioned in the Pitney opinion.

The judgment should be reversed, with costs.

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

Judgment affirmed.