(198 N.Y.S.)

the award, forthwith begin payment of it in accordance with this chapter, using any money of the county available therefor."

Further provision is made for borrowing by the county treasurer if no money is available therefor, and for the board of supervisors to levy the amounts necessary to meet the award upon the proper political subdivision. See, also, former statute, § 35, as added by Laws 1919, c. 458.

I can see no reason for denying compensation to an employee of a school district, if his employment comes within one of the specified groups, solely upon the ground that no machinery had been provided in the statute at the time of the accident for collecting the award. The intention to cover such an employee is clearly shown by the addition of old group 43 of section 2, now group 17 of subdivision 1 of section 3, added to the former statute by Laws 1916, c. 622. An award under the old statute left the claimant with a claim against the district which I think we should recognize as valid and enforceable under the present machinery provided in section 50 of the law. To give that section retroactive effect would not be to create a liability which did not previously exist, but simply to afford the relief which a previous liability entailed.

[4] No serious question of the constitutional right of the Legislature to make provision for compensation for public employees engaged in carrying on a governmental function can be raised. The provision of our Constitution (Const. N. Y. art. 1, § 19) providing that the awards paid "shall be held to be a proper charge in the cost of operating the business of the employer" cannot be interpreted as having any relation to awards paid to public employees. That was inserted as a permission or right to be afforded to a private employer to offset any claim that his property was being taken without due process. No such claim of unconstitutionality would ever exist on behalf of the state or a political division thereof, and no good reason can be urged for interpreting that clause of our state Constitution as meaning a limitation on the otherwise paramount power of the Legislature to allow a compensation claim against the state or any subdivision thereof, which in good morals ought to be allowed if it requires it of the private employer under similar circumstances. This, in substance, is the view which the Court of Appeals has already expressed. Munro v. State, 223 N. Y. 208, 119 N. E. 444. See, also, Ryan v. City of New York, 228 N. Y. 16, 126 N. E. 350.

[5] The next question in this case is whether the claimant's intestate was an employee within one of the specified groups of hazardous employments set forth in the Workmen's Compensation Law. The sole claim is that claimant's intestate was the janitor of a public school in the town of Leicester, and that as such he was engaged in the "maintenance and care of buildings," one of the occupations set forth in old group 42 of section 2, as inserted in said group by Laws 1917, c. 705, and continued by Laws 1918, c. 634 (now section 3, subd. 1, groups 2, 13). So far as as his duties related to "maintenance and care of buildings" he was covered by the statute. His injury arose on the school grounds, but not in the school building. He went from the school building to a place about 50 feet therefrom, where the school district was having a well excavated. He had nothing to do with the

construction of the well. That was in the charge of another workman, who was doing the excavating. The sole duty of this janitor in going to the well, as found by the State Industrial Board, was "to see whether any of the scholars in said school had disobeyed his instructions by descending into the well." As he looked over the edge of the well for that pupose, the workman therein struck a match to light a cigarette. and natural gas in the well exploded, injuring the janitor and causing his death.

The State Industrial Board may have been justified in finding that he was performing his duty within his employment, but we cannot see how it can be said that any duty of his to guard these children from injury at this well was a duty having any relation to the "maintenance and care of buildings." A janitor is not covered except in relation to his duties in the "maintenance and care of buildings." The award has been based upon a finding that he was engaged in the care of children 50 feet away from the only building that was placed in his charge. The well was in the charge of another workman employed by the district. Even if we could say that a well is a building, no well had been built. The men were simply digging a hole preparatory to constructing a well. A "building," as the term is used generally and as we think it was used in former group 42 of section 2 relating to "maintenance and care of buildings," is defined by Webster as follows:

"A fabric or edifice, framed or constructed, designed to stand more or less permanently, and covering a space of land for use as a dwelling, storehouse, factory, shelter for beasts, or some other useful purpose."

The janitor of this school was not engaged in the "maintenance and care of buildings" at the time of his injury, and the award should therefore be reversed, and the claim dismissed, with costs to appellant against the State Industrial Board. All concur; HASBROUCK, J., with separate opinion; KILEY, J., in the result.

HASBROUCK, J. (concurring). This is an appeal from an award of the State Industrial Board made to the widow of William Bailey, deceased, for his death. William Bailey, employed as janitor of school district No. 5, town of Leicester, N. Y., was killed by an accident September 12, 1921. The trustees had employed one Frank Fellers to dig a well on the premises. During the course of the excavation for the well, Bailey walked from the schoolhouse over to the well, and while looking into it a workman lighted a cigarette and caused such an explosion of the gas in the well as to blow Bailey into the air. When he fell he hit his head on a saw horse and fractured his skull, from which injury he died.

The widow of the deceased has filed a claim under the Workmen's Compensation Law for compensation for his death. The claim is resisted upon several grounds, viz.: That conducting a public school is not a business under section 19 of article 1 of the Constitution; that the Workmen's Compensation Law does not contemplate charging liability upon municipal corporations not engaged in an effort for gain or profit; that the accident in which deceased was killed did not arise. out of nor in the course of his employment; that the law furnished no machinery by which compensation might be collected from the school district.

(198 N.Y.S.)

Section 19 of article 1 of the State Constitution, making provision. for injuries and deaths of employees in industrial employments, concludes with the following paragraph:

"Provided that all moneys paid by an employer to his employees or their legal representatives, by reason of the enactment of any of the laws herein authorized, shall be held to be a proper charge in the cost of operating the business of the employer."

It needs no argument of demonstration that where the effort of a political subdivision of a state-and such we must hold a school district to be (General Corporation Law, § 3, subd. 1; State v. Drainage & Water Com'rs of Englewood Tp., 41 N. J. Law, 157)-is to furnish free education, there is no business against which the expenses of operation may be charged. If running a public school could be held to be a business, such business reaps no income nor profit with which to pay any of its obligations.

The attorney for the Industrial Board seems to have based his argument to sustain the award upon certain language used by Judge Cardozo in Matter of Ryan v. City of New York, 228 N. Y. 16, 18, 126 N. E. 350, 351, viz.:

"Employees of the state or of a municipal corporation have the protection of the statute if they are engaged in one or more of the enumerated hazardous employments."

The Legislature has no doubt the power to authorize the recognition of claims against the state resting on an equitable or moral basis despite the language of section 19 of article 1 of the Constitution. Cole v. State of New York, 102 N. Y. 48, 6 N. E. 277. So, too, it may provide that a municipal corporation which engaged in business may come under the Workmen's Compensation Law.

The language used, however, was obiter and may not have distinct application to the case at bar. We think that the concluding provision of section 19 of article 1 of the Constitution needs no resort to any of the tenets of construction to find its meaning. The ordinary significance of the word "business" is operation or work for gain or livelihood. People v. Meola, 193 App. Div. 487, 184 N. Y. Supp. 353; Goddard v. Chaffee, 84 Mass. (2 Allen) 395, 79 Am. Dec. 796; Flint v. Stone Tracy Co., 220 U. S. 107, 31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312; Jensen v. Southern Pac. Co., 215 N. Y. 514, 109 N. E. 600, L. R. A. 1916A, 403, Ann. Cas. 1916B, 276; Matter of Post v. Burger & Gohlke et al., 216 N. Y. 544, 111 N. E. 351, Ann. Cas. 1916B, 158.

In the case of Beeman v. Board of Education of Penn Yan, 195 App. Div. 357, 187 N. Y. Supp. 213, affirmed 231 N. Y. 624, 132 N. E. 914, it was distinctly held that

"Where there is no business upon which such a charge may be made there is no warrant for the statute, and the provisions of section 2 are all to be read in connection with this constitutional proviso."

Section 2 of the former statute as amended contains the various groups wherein are enumerated the hazardous employments which are within the coverage of the Workmen's Compensation Law.

Among the provisions of section 3 is subdivision 5 (Laws 1914, c. 41, "as amended by Laws of 1917, chapter 705"), which provides:

"Employment, includes employment only in a trade business or occupation carried on for pecuniary gain, or in connection therewith."

It having been held that unless the occupation was carried on for pecuniary gain a claim would not lie under the Workmen's Compensation Law (Allen v. State, 173 App. Div. 455, 160 N. Y. Supp. 85), the Legislature changed the law by chapter 622 of the Laws of 1916 so as to provide in group 43 of section 2 as follows:

"Any employment enumerated in the foregoing groups and carried on by the state or a municipal corporation or other subdivision thereof, notwithstanding the definition of the term 'employment' in subdivision five of section three of this chapter."

See, also, Laws of 1917, c. 705, amending said section 2, group 43. There can be no doubt but that the purpose of this amendment was to bring the state and municipal corporations and subdivisions thereof within the terms of the Workmen's Compensation Law.

Whatever may be the effect thereof on the state and such municipal corporations and subdivisions thereof as may be engaged in business and have and possess incomes against which compensation may be charged under the Constitution, it was not within the power of the Legislature in the face of the terms of section 19 of article 1 to charge such compensation against a political subdivision which was not engaged in business. The maintenance of a free public school is not for a corporate but for a public benefit. Maxmilian v. Mayor, etc., of City of New York, 62 N. Y. 160, 20 Am. Rep. 468.

To hold that the people had in mind school districts when the amendment for the relief of workmen was adopted is to force a fantastic construction on language the meaning of which is perfectly obvious. School districts in the country have an unequal struggle now to furnish free instruction, and, if to such burden there were added that of insurance or self-insurance against compensation for injured employees, it might well be anticipated that that system which the Constitution has so clearly established might be crippled or destroyed. The provision of the Constitution is:

"The Legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated." Constitution, art. 9, § 1.

It cannot be possible that when the makers of the Constitution of the state specifically granted to the Legislature the duty of providing for the maintenance and support of a system of free common schools they at the same time had in contemplation the conference of a power on such legislative agency to impair or destroy the efficiency and life of such system. McCulloch v. Maryland, 4 Wheat. 431, 4 L. Ed. 579; Cooley's Constitutional Limitations (7th Ed.) 680, 681.

At the time of the making of the award herein, paragraph B of subdivision 4 of section 50 of the Workmen's Compensation Law of 1922, being chapter 67 of the Consolidated Laws, Laws of 1922, c. 615, undertaking to confer power on the board of supervisors to levy a tax upon a school district had not been passed. The law as it then

(198 N.Y.S.)

stood was section 35 of the former Workmen's Compensation Law, as added by Laws of 1919, c. 458, it provided:

"The board of supervisors of each county of the state may provide for the payment of compensation under this chapter to town, village, city and county. employees by taxation, which shall be known as the "Taxation System' of paying such compensation."

It will be seen that no mention is made in section 35 above quoted of the school district as a political subdivision of the state amenable to taxation for the purposes of the Workmen's Compensation Law.

There was therefore on March 4, 1922, no legal machinery in existence empowering the board of supervisors to raise money on the property of the alleged employer with which to make compensation. The claim therefore must fail.

The award should be reversed, with costs to the appellant.

ZELTNER et al. v. SANTORA.

(Supreme Court, Appellate Term, First Department.

February 9, 1923.)

Landlord and tenant 75(1)-Monthly tenant's interest held assignable.
A monthly tenant may assign his interest.

Appeal from Municipal Court, Borough of The Bronx, Second District.

Summary proceeding by Lorin W. Zeltner and others, owners, against one Santora, occupant. From a final order awarding possession to owners, occupant appeals. Reversed, and petition dismissed. Argued January term, 1923, before BIJUR, MULLAN, and McCOOK, JJ.

Meyer Levy, of New York City, for appellant.

Henry J. Block, of New York City, for respondents.

PER CURIAM. The appellant, held to be a squatter, was in possession as the assignee of the unexpired term of a monthly tenant. The ground assigned by the learned trial justice was that a monthly tenant may not assign his lessee interest. We are not aware of any such rule of law.

Final order reversed, with $30 costs, and petition dismissed, with

costs.

LIBERTY SALES CO. v. DAVIS, Director General of Railroads.

(Municipal Court of City of New York, Borough of Manhattan, Third District. February 14, 1923.)

1. Carriers 91-Carrier liable for conversion for selling goods and not giving consignee notice of arrival.

Where carrier failed to notify consignee of the arrival of a shipment and subsequently sold the goods shipped, consignee may maintain an action on the theory of conversion.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes