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Board of examiners; licenses, etc. (L. 1898, ch. 555), SS 7, 9. of such firm, or the managing officer of such corporation shall be a licensed undertaker. All applications for licenses under this section shall be verified by the applicant before an officer authorized by law to take acknowledgments of deeds. A person licensed as an undertaker under this section shall cause his license to be registered at the office of the board of health of the city, town or village in which he proposes to engage in business as an undertaker, and he shall display said license in a conspicuous place in his office or place of business. No person shall practice or hold himself or herself out as practicing undertaking, unless licensed as provided herein; nor shall a firm or corporation practice or hold itself out as practicing undertaking unless one of the members of such firm, or the managing officer of such corporation is so licensed. (Added by L. 1904, ch. 498, in effect April 29, 1904.)

L. 1898, ch. 555, 88 7, 9 (C. & G. General Laws, p. 1372), amended by L. 1904, ch. 498, in effect April 29, 1904, as follows:

§ 7. Licenses not transferable.- No license granted or issued under the provisions of this act shall be assignable, and every such license shall specify by name the person to whom it shall be issued, and not more than one person shall practice embalming under one license. Except that this section shall not apply to any personal representative of any deceased undertaker to whom a license shall have been issued under this act who engages in the business of undertaking and embalming with a person duly authorized to practice the same under the provisions of this act. (Amended by L. 1904, ch. 498, in effect April 29, 1904.)

§ 9. Unlicensed embalming prohibited.- On and after the first day of January, eighteen hundred and ninety-nine, no person to whom a license has not been issued as prescribed by sections four and six-a of this act, or who has not passed the examination herein prescribed and been licensed as herein specified, shall transact the business or practice of undertaking and embalming of human dead bodies within this state, except that nothing in this act contained shall apply to commissioned medical officers in the army of the United States, or in the United States marine hospital service while so commissioned, or any one actually serving as a member of the resident medical staff of any legally incorporated hospital, or to any person duly licensed to practice as physicians or surgeons in this state. (Amended by L. 1904, ch. 498, in effect April 29, 1904.)

Liability regulated, L. 1902, ch. 600.

EMPLOYERS' LIABILITY.

L. 1902, ch. 600. An act to extend and regulate the liability of

employers to make compensation for personal injuries suffered by employes. [In effect July 1, 1902.]

Effect of statute upon common-law remedy; notice of injury; constitutionality.- Where a remedy existed at the common law for a wrong or injury against which a remedial statute is directed, if such statute provides a more enlarged or summary or more efficient remedy for the party aggrieved, but does not in terms or by necessary implication deprive him of the common-law remedy, the statutory remedy is considered as merely cumulative, and the party injured may resort to either at his election. The provision of section 2 of the act that no action for recovery for death“ under this act " shall be maintained unless notice of the injury be given to the employer within 120 days thereafter, does not affect the common-law liability of the employer nor the right of the employe to recover in a common-law action without such notice, but such notice is only necessary where the action is brought to enforce the liability imposed by the statute. If the statute was construed so as to require an employe, in order to enforce his common-law right of action, to give the notice required in section 2 of the act, it must be held to impose an additional burden upon an employe which is not imposed on others for wrongs resulting in injury or death, and would, therefore, be in conflict with the constitutional provision that no member of the state shall be disfranchised or be deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers. Rosin v. Lidgerwood Mfg. Co., 89 App. Div. 245, 86 N. Y. Supp. 49; this case was approved as to the effect of the act upon the common-law remedy in Gmaehle v. Rosenberg, 178 N. Y.

147, rev'g 87 App. Div. 631. See contra, Johnson v. Roach, 83 App. Div. 351, 82 N. Y. Supp. 203.

The effect of the employers' liability act is to take from the employer the defense of common employment where injury results to an employe through the negligence of one whose sole or principal duty is that of superintendence, at least where the negligence related to the place of the performance of the work and the construction of appliances for its prosecution; and it cannot be construed as making an employe a mere licensee to whom the employer owes no duty of exercising reasonable care. Bellegarde v. Union Bag & Paper Co., 90 App. Div. 577, 86 N. Y. Supp. 72.

Effect as to actions arising under labor law, $ 18.- The employers' liability law, does not take away rights existing under the labor law for a violation of the provisions forbidding any employer to furnish his employe an unsafe scaffold, nor did it take away any similar rights existing at common law. A complaint in an action arising under section 18 of the Labor Law, is not demurrable because of a failure to allege that Liability defined (L. 1902, ch. 600). $ 1.

notice of the accident had been given to the employer as required in the above act. Gmaehle v. Rosenberg, 40 Misc. 267, 81 N. Y. Supp. 930, atfd. 178 N. Y. 147.

§ 1. Liability defined.- Where, after this act takes effect, personal injury is caused to an employe who is himself in the exercise of due care and diligence at the time:

1. By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and entrusted by him with the duty of seeing that the ways, works or machinery were in proper condition;

2. By reason of the negligence of any person in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence, or in the absence of such superintendent, of any person acting as superintendent with the authority or consent of such employer; the employe, or in case the injury results in death, the executor or administrator of a deceased employe who has left him surviving a husband, wife or next of kin, shall have the same right of compensation and remedies against the employer as if the employe had not been an employe of nor in the service of the employer nor engaged in his work. The provisions of law relating to actions for causing death by negligence, so far as the same are consistent with this act, shall apply to an action brought by an executor or administrator of a deceased employe suing under the provisions of this act.

Effect of statute as to liability of employer for negligence of coemploye.- Where an employe was injured by the fall of a derrick occasioned by the negligence of the employer's superintendent in failing to guy the derrick in front after his attention was called to the fact that a guy in front was needed, though in other respects the derrick was a proper one, and the employer had furnished sufficient ropes to guy it properly, the employer was held liable, under subdivision 2 of section 1 of the above statute. In considering the effect of such subdivision the court said: “We think the object was, and the effect of subdivision 2 of section 1 of the Employers' Liability Act is, to take from the employer the defense of common employment where the injury results to an employe through the negligence of one whose sole or principal duty is that of superintendence. At least, this is so in the case at bar, where the negligence related to the place of the performance of the work, and the construction of appliances for its prosecution. The superintendent of defendant was guilty of negligence in not properly guying the derrick

Notice (L. 1902, ch. 600), $ 2.

after his attention had been called to the insufficiency of its support. The defense that the negligence was that of a co-employe was not available to the defendant.” Bellegarde v. Union Bag & Paper Co., 90 App. Div. 577, 86 N. Y. Supp. 72, affirming, 41 Misc. 106, 83 N. Y. Supp. 925.

Sufficiency of pleadings.— A judgment recovered by a plaintiff upon a common-law cause of action when his complaint set forth a cause of action wholly under the statute, cannot be sustained on appeal. Irrespective of whether or not an employe still retains his right to bring a common law action for injuries against his employer, notwithstanding the employer's liability act, if he chooses to bring his action under that act, his proofs must establish a cause of action thereunder. Davis v. Broadalbin Knitting Co., 90 App. Div. 567, 86 N. Y. Supp. 127.

§ 2. Notice.- No action for recovery of compensation for injury or death under this act shall be maintained unless notice of the time, place and cause of the injury is given to the employer within one hundred and twenty days and the action is commenced within one year after the occurrence of the accident causing the injury or death. The notice required by this section shall be in writing and signed by the person injured or by some one in his behalf, but if from physical or mental incapacity it is impossible for the person injured to give notice within the time provided in said section, he may give the same within ten days after such incapacity is removed. In case of his death without having given such notice, his executor or administrator may give such notice within sixty days after his appointment, but no notice under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury if it be shown that there was no intention to mislead and that the party entitled to notice was not in fact misled thereby. The notice required by this section shall be served on the employer or if there is more than one employer, upon one of such employers, and may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. The notice may be served by post by letter addressed to the person on whom it is to be served, at his last known place of residence or place of business and if served by post shall be deemed to have been served at the time when the letter containing the same would be delivered in the ordinary course of the post. When the employer is a corporation, notice shall be served by delivering the same or by sending it by post addressed to the office or principal place of business of such corporation.

Liability regulated (L. 1902, ch. 600). SS 3, 4. § 3. Assumption of risks; continuing in service.- An employe by entering upon or continuing in the service of the employer shall be presumed to have assented to the necessary risks of the occupation or employment and no others. The necessary risks of the occupation or employment shall, in all cases arising after this act takes effect be considered as inciuding those risks, and those only, inherent in the nature of the business which remain after the employer has exercised due care in providing for the safety of his employes, and has complied with the laws affecting or regulating such business or occupation for the greater safety of such employes. In an action maintained for the recovery of damages for personal injuries to an employe received after this act takes effect, owing to any cause for which the employer would otherwise be liable, the fact that the employe continued in the service of the employer in the same place and course of employment after the discovery by such employe, or after he had been informed of, the danger of personal injury therefrom, shall not, as a matter of law, be considered as an assent by such employe to the existence or continuance of such risks of personal injury therefrom, or as negligence contributing to such injury. The question whether the employe understood and assumed the risk of such injury, or was guilty of contributory negligence, by his continuance in the same place and course of employment with knowledge of the risk of injury shall be one of fact, subject to the usual powers of the court in a proper case to set aside a verdict rendered contrary to the evidence. An employe, or his legal representative, shall not be entitled under this act to any right of compensation or remedy against the employer in any case where such employe knew of the defect or negligence which caused the injury and failed, within a reasonable time, to give, or cause to be given, information thereof to the employer, or to some person superior to himself in the service of the employer who had intrusted to him some general superintendence, unless it shall appear on the trial that such defect or negligence was known to such employer, or superior person, prior to such injuries to the employe.

§ 4. Contribution to insurance fund.- An employer who shall have contributed to an insurance fund created and maintained for the mutual purpose of indemnifying an employe for personal injuries, for which compensation may be recovered under this act,

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