#### Giovanni Banchetti, as Administrator of the Estate of Pietro Amato, Deceased, Plaintiff, *v.*C. K. Williams & Company, Defendant.

(Supreme Court, Monroe Trial Term,

January, 1912.)

Master and servant—Contributory negligence of servant — Actions — Weight and sufficiency of evidence.

In an employee’s action against the master to recover for personal injuries sustained prior to the enactment of section 202-a of the Labor Law (L. 1910, eh'. 352) the burden of proof is upon plaintiff to establish the negligence of the defendant and plaintiff’s intestate’s freedom from contributory negligence.

Section 202-a of the Labor Law, providing that “ On the trial of any action brought by an employee or his personal representative to recover, damages for negligence * * * contributory negligence of the injured employee shall be a defense to be so pleaded and proved by the defendant,” must be read in connection with section 202 of the Labor Law, which declares that it has reference to actions brought to recover damages for injuries or death resulting therefrom; received “ after this act takes effect,” and must' be construed prospectively.

Said section 20-2-a does not relate merely to practice and procedure but affects a substantial right and has no application upon the trial of an action by an employee against his master for accidental injuries, resulting in death, sustained prior to the enactment of said section 202-a.

Motion by plaintiff for a new trial.'

*263George Fort Slocum, for plaintiff.

Wile & Oviatt, for defendant.

Clark, J.

On the trial of this action defendant had a verdict, and plaintiff moves for a new trial. On the 14th day of September, 1909, plaintiff’s intestate, while working for defendant undermining a bank of dirt, was injured by a portion of the bank falling on him, causing injuries from which he died. Plaintiff was appointed administrator of his estate on the 8th day of September, 1912; and this action for damages because of such death was commenced two days later.

At the time the accident occurred, and when the cause of action, if any, accrued, it was incumbent upon plaintiff to establish the negligence of defendant and the intestate’s freedom from negligence which contributed to the accident.

Chapter 352 of the Laws of 1910, which went into effect on the first day of September of that year,, contained' a section (202-a) which reads as follows: “On the trial of any action brought by an employee or his personal representative to recover damages for negligence arising out of and in the course of such employment, contributory negligence of the injured employee shall be a defense to be so pleaded and proved by the defendant.”

The court charged the jiiry, in substance, that plaintiff could not recover unless he proved not only the defendant’s negligence, but the freedom of intestate from negligence which contributed to the accident. Counsel for plaintiff excepted to the charge as made, and asked the court to charge that the burden of proof of contributory negligence was upon defendant; and that request was declined for the reason that, when the accident occurred and the cause óf action accrued, contributory negligence of the injured employee. was not a - defense to be pleaded and proved by the defendant, but before the action could be maintained plaintiff was obliged to establish, by a fair preponderance of the evidence, that the injured employee was free from contributory negligence.

*264Plaintiff now asks for a new trial, urging that this was erroneous, for the reason that the change in the statute related merely to practice and procedure, and that the statute in force at the time the action was commenced should control without regard to what the law was with reference to contributory negligence at the time the accident took place.

I cannot agree with the learned counsel in this contention. This statute which made contributory negligence a defense should not be construed as retroactive in its operation, -for the reason that the purpose to make it so is not expressed in the act, and it contains no language from which it can reasonably be inferred that it was the legislative intent that the act should be other than prospective in its operation; and, in the absence of such language, it should be construed that the statute was to be prospective and not retroactive in its operation. 36 Cyc. 1205; N. Y. & O. M. R. R. Co. v. Van Horn, 57 N. Y. 473; Bottjer v. Supreme Council, 78 App. Div. 546.

Although the section in question makes contributory negligence a defense (§ 202-a), it is merely a part of.chapter 352 of the Laws of 1910, which amends the Labor Law in relation to an employer’s liability; and it should be read in connection with section 202, which plainly states that it' .has reference to actions brought to recover damages for injuries or death resulting therefrom, received *“ after this act takes*effectSection 202-a, supra, was not a separate enactment talcing effect September 1, 1910, but is a section of chapter 352 of the Laws of 1910, all of which went into effect on that date, and the sections should be read together. Adopting that view, it is perfectly plain that the legislative intent was that the act should have a prospective and not a retroactive operation.

This is not merely a matter of procedure, but affects á substantial right. When this accident occurred .and the cause of action accrued, the rights of the parties were clearly defined; but, before defendant could be made to respond in damages, plaintiff’s freedom from negligence was as much a part of his case to be established by a fair preponderance of the evidence as was the negligence of defendant, and it had an absolute right to rely on the law as it existed at *265the time of the accident, and to insist upon plaintiffs establishing intestate’s freedom from negligence as a condition precedent to the maintaining of the action. If by legislation subsequently passed one of the very essential elements to he established by plaintiff in a case of this character, before the action could he maintained, could be removed, it impresses me that a substantial right of defendant which existed at the time the cause of action accrued would be improperly cut off and done away with. Defendant had a right to have the case disposed of according to the law as it existed at the time the accident occurred and the cause of action accrued without cutting off any of its lights by legislation subsequently enacted.

This construction seems all the more reasonable when it is known -that nothing in the act under consideration, either by express words or by implication, warrants the conclusion that it was intended that the section should have a retroactive instead of a prospective operation. The very fact that sections 202 and 202-a of chapter 352 of the Laws of 1910 were enacted at the same' time and took effect on the same date, and that by section 202 it was plainly stated that it should apply to actions for damages for personal injury or death resulting therefrom received “ after this act takes effect,” shows clearly and conclusively that it was the legislative intent to have the entire act (Laws of 1910, chap. 352) have a prospective operation, and that it would not he proper to single out any particular section of that act and, because it does not say that it shall have prospective operation, assume that it was intended that it should have a retroactive operation. Reading the sections together justifies the conclusion that it was not.intended to give to the legislation in question retroactive operation; and, if that is so, the charge complained of would seem to he proper.

Plaintiff also complains that the court erred in that portion of the charge referring to the assumption of risk, hut I think the charge in that regard was substantially correct. Logerto v. Central Building Co., 123 App. Div. 840.

The motion for a new trial must he denied.

Motion denied.