Though broad and comprehensive in its scope, the power which may be exercised by the state has its limitations and must, in its exercise, have relation to the promotion of health, comfort, safety and welfare of society, and that, therefore, these sections of the Labor Law and section 384m of the Penal Code are unconstitutional. 1904, 96 App. Div., 383.

PENAL CODE.

(Sections 168 & 170.)

50. What Threats are a violation of the Penal Code-What Threats are Lawful-Rights of Union and non-union men -When Boycott is Unlawful-Agreement in restraint of trade-Demurrer to indictment not sustained-Conspiracy under Penal Code.

Under section 168 and 170 of the Penal Code, where it is admitted in the indictment that one of the objects the accused were seeking to accomplish was an increase in wages in order to accomplish the object approved in section 170, the members of the combination cannot cooperate to use any of the means which are declared to be illegal by section 168, such as, "to prevent another from exercising a lawful trade or calling or doing any other lawful act, by force, threats or intimidation."

If in order ultimately to effectuate the betterment of the condition of the members, the accused maliciously and with the immediate and direct intention to work an injury, conspire to deprive non-union men of all means of living and to bring about the destruction of the property of any one standing out against their demands, the statue was violated, and one's business is property.

In so far as the "threat" to injure property consisted only in the declaration of a purpose to quit the employment of anyone who would not submit to their demands, the agreement so to act was not a criminal conspiracyBut an incident to the exercise of lawful right which could be exercised singly or collectively without incurring any liability, criminal or civil, unless there was a breach of contract.

But to threaten the manufacturers with business annihilation with the waging of a war of destruction against them by the malicious use of the boycott, compelling would be customers to desist from purchasing because of fear induced by threats that if they do purchase, the full power of the organization will be focused and projected. against them to their destruction, is condemned by the law.

When members of an organization endeavor to compel a man to join the organization by threatening him that unless he does so they will not only refuse to labor with him but to prevent him from obtaining work at his trade, they will utilize the entire power and enginery of the association to turn customers away from and promote hostility toward any one who dares to employ him as a punishment for giving him work, they are guilty of the crime of conspiracy to prevent another from following his lawful occupation under section 168 of the Penal Code.

So far as the charge relates to the preventure of nonunion men from following their trade or calling the indictment in not naming the men or some of them who were thus injured, is defective.

An agreement which restrains competition and freedom of trade in articles of common necessity is against public policy and harmful to the community.

And where a boycott is threatened unless such an agreement is signed, and which requires the purchase of materials only of such factories as had received the approval of the union, it would be a restraint upon trade and commerce as is conditioned by said section 168 of the Penal Code.

The indictment held sufficient to put the accused upon their trial and demurrer thereto disallowed. 1904, 43 Misc., 591.

(Section 384h.)

51. Penal Code, Section 384h Violates Federal Constitution and is invalid.

The Penal Code, section 384h, subdivision 1, cannot be upheld as an exercise of the police power vested in the

Legislature or because the work was being done for the state. The statue does not assume to punish an offender against its provisions because he has violated any contract but solely because he has done the prohibited act, i. e., required more than eight hours labor regardless of the terms and conditions of his contract.

The statute should, therefore, be condemned in its entirety and cannot be upheld as to the limited class of cases in which it may be, the Legislature had the power to act but has not acted. 1903, 175 N. Y., 84, Reversing App. Div., and Affirming Misc.

(Section 384m.)

52. Section 384m of the Penal Code Unconstitutional. Penal Code, section 384m, requiring the licensing of horseshoers is unconstitutional for reasons given in Decision No. 49, which see.

(CHAPTER 459, LAWS OF 1903, SECTION 4.)

53. Section 4, Chapter 459, Laws of 1903, not unconstitutional, good Faith no Excuse.—

Section 5 of title 16 of the Consolidated School Law (Laws of 1894, Chap. 566) amended by Section 4, chapter 459, Laws of 1903, (See page 83) is a just and valid exercise of the police power of the state and not unconstitutional.

An exemption from liability on account of good faith, want of intent to violate the statute and subsequent nonemployment of the child, cannot be asserted or claimed.

The employer acts at his peril and the fact of employment makes him liable for the penalty of fifty dollars besides costs. 1904, 43 Misc. 266.

(EMPLOYER'S LIABILITY ACT.)

54. Statue affects only additional Liabilities and not Common Law Liabilities.

The Employer's Liability Act, (Laws 1902, chapter 600) requiring notice of time, place and cause of injury, to be served upon the employer within one hundred and

twenty days after the occurrence of the accident, where the complaint does not charge any liability based on the provisions of that statue, but states a good cause of action under the law of this state prior to the enactment of that statute, does not render the complaint demurrable on the ground that it fails to constitute a cause of action. By the terms of the statute, the requirement of notice to employer is limited to "actions for the recovery of compensation for injury or death under this act." It has given an additional cause of action where it prescribes that the master shall be liable for the negligence of the superintendent or any person acting as such.

At common law the master was liable for the fault of, among others, those to whom he intrusted the whole management of the work with power to employ and discharge servants, but he was not liable for the negligence of foreman merely as such. The statute does not cover the whole liability of the employer to the employee. The statute was only intended to subject and safeguard the new or extended liability, and limited the requirement for notice to actions for injuries or death under this act, and where the action is based on the Common Law Liability, it is unnecessary to give the statutory notice.

The constitutionality of the Employer's Liability Act not determined. 1904, 178 N. Y., 147. Reversing App. Div.

55. When Common Laborer does not Assume Risks as Matter of Law-When Employer not Free from Fault as Matter of Law.

Where an employee by his long service, three or four years, assumed the risks which the general plan or method of the operations of the employer involved, but did not assume the risks of defective or improper appliances in that plan or method or work unless the defect was obvious, or he had so long used the appliance as to be chargeable in law with knowledge of its insufficiency. He had the right to rely on the presumption that the master had done his duty in furnishing safe and suitable appliances, and where, so far as his experience had gone, he had seen that there was no danger from a change in

the appliance which he knew of, but not of the danger which the change involved, and if he did not, then a continuance in his employment was not an assumption of the risk, and it cannot be held as a matter of law, that such common laborer should have foreseen the risks thus involved.

As to the issue, the burden of proof is on the employer. It was the duty of the employer to guard against such accidents as could be foreseen as liable to occur by the exercise of reasonable care.

In making the change, the employer was bound to use reasonable care that the new appliance was equally safe with the old, and the jury might have found that the master was chargeable with knowledge of the danger caused by the change, which would not be imputed to a common laborer. 1903, 175 N. Y., 401. Reversing App. Div.

56. Promise by Employer to Repair Defect-Risks Assumed Become Risks of Employer.—

The Employer's Liability Act may in the future present a question of purely academic interest as to the rule that, if a servant who has knowledge of defects in appliances or machinery from which danger is to be apprehended, is induced to continue in the employment, by the promise of the master to repair the defect, the risk during the running of the promise and for a reasonable time there. after is that of the master and not of the servant.

Where the promise made to repair was not strictly equivalent of a promise to repair at once but capable of the construction that it was to be fulfilled within a reason, able time, the employee is justified in remaining at his work because, during that reasonable time, covered by the employer's promise, the risk theretofore voluntarily accepted by the employee is assumed by the employer. 1903, 174 N. Y., 385. Reversing App. Div.

57. Employer's Liability where a Place in which a Servant is Required to Work becomes Unsafe-Employment of a Foreman Binds Master.

It is the duty of the master in employing servants to use reasonable care to provide them with proper appli