#### Antonio Albanese, Plaintiff, *v.*Alexander M. Stewart and James C. Stewart, Doing Business as James Stewart & Co., Defendants.

(Supreme Court, New York Special Term,

December, 1912.)

Constitutional law — action by servant against master — foreign statutes — public acts of legislature of foreign state — violation of public policy of New York state.

Where, in a common law action by a servant against his master to recover for personal injuries sustained in the course of his employment in the state of New Jersey, separate defenses are based on the Workman’s Compensation Acts of said state which were in force at the time of the accident, a demurrer to said separate defenses on the ground that the statute of New Jersey is opposed to the public policy of the state of New York, to the decisions of the higher courts of the state of New York, and is unconstitutional and that the courts of this state are not bound to give full faith and credit to the public acts of the legislature of the state of New Jersey when violative of the public policy of this state, will be overruled with leave to reply.

Demurrer to separate answers set up in answer of defendants.

Michael A. Bofrano, for plaintiff.

Carl Schurz Petrasch, for defendants.

Cohalan, J.

Plaintiff demurs to two separate defenses set up in the answer of the defendants. He alleges that they are insufficient in law and that they fail to set up facts sufficient to constitute a defense. This is a common-law action brought by the plaintiff, a servant, against his master to recover damages for personal injuries sustained in the course of his employment in the state of Hew Jersey. The separate defenses are based on the Workman’s Compensation Acts of the state of New Jersey (Acts of 1911, chap. 95). It is conceded that the act was in force at the time of the accident and that ordinarily the liability of the defend*582ants would be governed by the laws of the state of New Jersey. Johnson v. Phoenix Bridge Co., 133 App. Div. 807; Stokes v. Barber Asphalt Paving Co., 134 id. 363. The first separate defense in the answer sets forth that the provisions of the statute constitute a contract between the plaintiff and the defendants whereby the plaintiff ag’reed to accept and the defendants agreed tó pay a certain sum of money in case of injury occurring to the plaintiff while performing duties in the course of his employment; that each party agreed to waive all questions of the negligence of either and to be bound solely by the terms of the statute. The second separate defense sets forth the provisions in the statute that, in case of dispute over or failure to agree on a claim for compensation, either party might submit the claim to a judge of the Court of Common Pleas of the state of New Jersey, who was authorized to hear and determine such disputes; that the plaintiff, not having pursued the preliminary steps required by the statute, cannot now proceed thereunder. The grounds urged to sustain the demurrer are these: (a) That the act of New Jersey is opposed to the public policy of the state of New York, to the decisions of the higher courts of this state, and is unconstitutional; (b) that the courts of this state are not bound to give full faith and credit to the public acts of the legislature of New Jersey when those acts are violative of the public policy of New York state. The position taken by the plaintiff is an anomalous one. The statute in question was undoubtedly drawn in the interest of the employee. The spirit of the times has demanded progressive legislation of this kind. Yet the plaintiff persists in maintaining his action under the rules of the common law. Under the common law the employee was held to have assumed the ordinary and obvious risks incident to the employment, as well as the special risks arising out of dangerous conditions, which were known and appreciated by him. In the Labor Law and the Employers’ Liability Act, which defined the risks assumed by the employee, are a great variety of duties and burdens unknown to the common law. Ives v. South Buffalo R. Co., 201 N. Y. 271. The plaintiff had an *583opportunity to avail himself of this New Jersey statute, but has sought principally on constitutional grounds to attack it. In the one decision in which the provisions of this statute were reviewed and which is reported in 34 New Jersey Law Journal, at pages 368-381, and 35 New Jersey Law Journal, pages 8-29, the constitutionality of the act was upheld. In the case of Ives v. South Buffalo R. Co., 201 N. Y. 271, it was held that compulsory compensation in certain dangerous employments was unconstitutional. However, the New Jersey act is not a compulsory statute. It is a so-called Optional or elective statuté. The act, in section 2, paragraph 9, provides that a contract of hiring shall be presumed to have been made under the act unless a contract of employment or a notice sent by either party to the other shall otherwise provide, and no such contract has been made or notice sent by either party in this case. The statute, therefore, becomes compulsory only in the event that neither party disaffirms it. Following the decision of the United States Supreme Court in the case of Mondou v. N. Y., N. H. & H. R. R. Co., 223 U. S. 1, upholding the Federal Employers’ Liability Acts, the several states have passed legislation embodying provisions similar. to those contained in the statute in question. These statutes invariably have been declared constitutional. The accident happened in the state of New Jersey, and as the liability of the defendants is governed by the law of that state I think that the demurrer should' be overruled, with leave to the plaintiff to reply to the defenses set forth in the answer.

Demurrer overruled, with leave to plaintiff to reply to defenses set forth in answer.