fifteen years of age as of one under fourteen years when the certificate mentioned has not been filed in the office of the employer. But, assuming that the employment in a factory of a child between the ages of fourteen and sixteen years is precisely on the same plane as that of one under fourteen years, unless a certificate has been obtained and filed, the child or employee is not entitled to invoke the rules which would be applicable where a certificate had not been filed in the absence of any evidence that such was the fact, and it is not for the employer, as part of his case, to show that it had been filed and in the absence of any evidence at all, the court will not presume under the pleadings and upon the evidence that no certificate had been filed.

The statute creates an entirely new ground of liability, and to recover, the case must be brought within the provisions of the statute as a whole, and the burden does not rest upon the employer. 1904, 94 App. Div., 38.

(Section 79.)

40. Labor Law-When Inapplicable.—

Labor Law, Section 79, is not applicable to a case where a boy between fourteen and sixteen years of age is not employed to run the elevator and what he does with reference to it, is his own voluntary act. One who employs an errand boy between fourteen and fifteen years of age is not guilty of negligence when he sends. him on an errand because he does not send someone to look after him. 1902, 72 App. Div., 618.

(Section 81,)

41. When Section 81, Labor Law, is Violated by Employer -when Question for Jury.—

The Labor Law, Section 81, is violated where an employer, having a planing machine for which a proper guard is provided, but its use is dispensed with pursuant to the instructions of the employer and the employee, who has had but little experience in the use of the machine, is told to use the machine in this dangerous condition, and

there is no evidence that he has ever been told of its dangers. When he attempted to take the necessary precautions by the adjustment of the guard placed upon the machine in accordance with the provisions of the statute, he was told by the employer to desist and to use the machine without the guard properly arranged which was the cause of the accident.

The use of the machine in this way was a direct violation of the Labor Law, section 81.

It was a question for the jury to determine whether the employee was shown to have such acquaintance with the dangers of the machine in this condition that he could be said to have assumed the risk.

It was the duty of the employer not only not to direct the use of the machine without its being properly guarded but to forbid its use in such condition. 1904, 94 App. Div., 183.

42. Section 81 does not require Employers to guard against every Danger.—

By the Labor Law, Section 81, it was intended that those parts of the machinery which were dangerous to the servants, whose duty required them to work in its immediate vicinity, should be properly guarded so as to minimize, as far as practicable, the dangers attending their labors, but masters are not called upon to guard against every possible danger. They are required only to guard against such dangers as would occur to a reasonably prudent man. 1904, 94 App. Div., 38.

43. When a Boy under Sixteen not guilty of Contributory negligence as Matter of Law.

An action predicated upon a violation of section 81 of the Labor Law for personal injuries sustained by a boy fifteen years of age who had obtained the required certificate upon a misrepresentation of the facts, and employed by a manufacturer of tools and machinery and had worked seven days in the tool room, and a machine known as a conveyor operated by mechanical power was used by the employer to carry tools to and from different floors, the conveyor being in constant motion during business, mov

ing about one foot per second. On the eighth day he was directed to attend the conveyor on the fourth floor in the absence of the boy who regularly attended it, which was his first experience at that work. He had received no warning as to the danger or instructions as to the safe method of performing the duties assigned.

Held, not a dangerous machine as matter of law within contemplation of the statute; That the question of contributory negligence was one for the consideration of the jury; That, if it appeared that the boy at the time realizing and appreciating the danger, heedlessly thrust his head in the path of the descending pans, it would be contributory negligence as matter of law, but where the injury is received while attempting as best he could to perform the duties assigned to him, it raises a question for the jury. 1904, 91 App. Div., 141.

44. When Labor Law, Sectlon 81, Does not Relieve Employee from Consequence of Own Act or from Assuming Obvious Risks or Contributory Negligence.—

Labor Law, Section 81, does not relieve an employee from the consequence of her own voluntary act and there is no reason why an employee should not be allowed to assume the obvious risks of the business.

Where an employee's injuries are as much due to her own negligence as to that of the employer, no recovery can be had. 1902, 74 App. Div., 561.

45. When Machinery in course of construction or incompleted parts not required to be covered or guarded.— The Labor Law, Section 81, evidently intends that those parts of machinery which are dangerous to the servants whose duty requires them to work in its imediate vicinity, should be properly guarded so as to minimize as far as practicable, the danger attending their labors.

It was not intended, however, that every piece of machinery in a large building should be so covered or guarded.

There is nothing in the statute that requires an em. ployer to cover or guard machinery in the course of con

struction so that persons engaged in constructing it would not be injured, or that, where machinery is in the course of construction, the incompleted parts must be guarded so that those engaged in finishing its construction shall not be injured. 1902, 71 App. Div., 47.

(Section 110.)

46. Labor Law, Section 110, Held Valid.—

Section 110 of the Labor Law, which regulates the hours of labor in bakeries and confectionery establishments by limiting them to not exceeding sixty per week and ten per day, "unless for the purpose of making a shorter work day on the last day of the week," is within the police power possessed by the Legislature, as it is to benefit the public and has a just and reasonable relation to the public welfare and is valid because it provides that an employment which the Legislature deems, and which is in fact, to some extent detrimental to health, no person, regardless of age or sex, shall be permitted or required to labor more than a certain number of hours per day or week. Such legislation, under such circumstances, is a health law and is a valid exercise of the police power. 1904, 177 N. Y. 145, Affirming App. Div.

(Section 122.)

47. Labor Law, Section 122, Construed.—

Where an employer, operating a talc mine, has an employee as a miner who was at the bottom of the mine and was killed, by the fall of a large mass of material called a pillar of talc upon him, and the jury found the employer was negligent in regard to the pillar, and that the accident would not have happened had the employer in this regard performed his duty;

Held, It was the duty of the employer to adopt all reasonable means and precautions to provide for the safety of his employees; and that the evidence was sufficient to sustain the conclusion of the jury that the employer was liable. 1899, 41 App. Div., 613.

(Section 162.)

48. Employer omitting to comply with Section 162, contributory negligence on part of child not Matter of LawDuty of Employer-Effect of no proof of freedom from fault on part of child.—

Labor Law, Section 162, if not complied with by an employer, contributory negligence may not, as matter of law, be imputed to the child in respect to whom the omission relates.

A boy between fourteen and fifteen years of age employed as a cash boy in a mercantile establishment, and killed by falling down an elevator shaft in the store, had used the elevator three or four days to remove books to the vault but had received no instructions concerning the running of the elevator.

Held, that a duty rested upon the employer to explain to him the proper manner of managing it; that the evidence established negligence of the employer. But there was no sufficient proof of the freedom from fault on the part of the boy, that the necessity for the production of such proof still exists and that requirement was not met; that the failure to file the certificate did not enlarge the liability of the employer; that this part of the statute is directory. 1904, 96 App. Div., 465.

(Section 180-4)

49. Provisions requiring Licensing of Horseshoers are violation of constitution and Invalid.

Labor Law, Section 180 to 184 inclusive, making provision for a board of examiners to examine and license horseshoers, presents a question whether the regulation of the subject of horseshoeing falls within the authority of the State under the exercise of the police power, and held, that this law arbitrarily interferes with personal liberty and private property without due process of law for which reason it is invalid;

That the regulation of horseshoeing does not bear such relation to the public health, comfort and safety of society as to bring it within the subject upon which the police power may operate.