104 Misc. 419 | N.Y. Sup. Ct. | 1918
The plaintiff’s intestate, an infant under the age of sixteen years, was killed while in the employ of the defendant by an injury occurring during such service and employment through the negligence of the defendant. This action is to recover damages in behalf of the father of said infant and his next of tin because of such death by the wrongful act of the defendant, and in answer to the claim for damages there is set forth a defense which alleges that the subject matter of the action is not within the jurisdiction of the court because the Workmen’s Compensation Law of the state, which was in full force and effect at the time the plaintiff’s intestate is alleged to have sustained the personal injuries resulting in his death, provided the exclusive compensation for such death. Workmen’s Compensation Law, § 11. The defense compasses the businesses carried on by the defendant within the businesses included in the term ‘‘ hazardous employments;” that is, that the plaintiff’s intestate was engaged in the operation of a passenger elevator, which is an employment enumerated in article 1, section 2, group 22, of the present Workmen’s Compensation Act. Besides, it is shown and deemed to be true on this demurrer that the defendant has provided for the benefit of the plaintiff,- or in the event of death for the next of tin of his intestate, compensation for injury or death therein in one of the methods prescribed by section 50 of the act, and that therefore the exclusive remedy for such wrongful act resulting in death lies within the relief afforded under such Workmen’s Compensation Law. The demurrer goes upon the ground that the employment in which the child was engaged was one prohibited by the public policy of the state declared by the legislature in section 93 of the Labor Law, to wit: “ Section 93. Prohibited employment of women and children. * * * 2. * * *
Ordered accordingly..