224 N.Y. 30, Doey v. Clarence P. Howland Co., Inc.

Citation:224 N.Y. 30
Party Name:In the Matter of the Claim of MARGARET DOEY v. CLARENCE P. HOWLAND CO., INC., et al., Respondents. THE STATE INDUSTRIAL COMMISSION, Appellant.
Case Date:June 04, 1918
Court:New York Court of Appeals
 
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224 N.Y. 30

In the Matter of the Claim of MARGARET DOEY

v.

CLARENCE P. HOWLAND CO., INC., et al., Respondents. THE STATE INDUSTRIAL COMMISSION, Appellant.

New York Court of Appeal

June 4, 1918

Argued April 25, 1918.

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COUNSEL

Merton E. Lewis, Attorney-General (E. C. Aiken of counsel), for appellant state industrial commission. The state industrial commission had jurisdiction to make the award as the defendant employer was not subject to admiralty jurisdiction. (Roach v. Chapman, 63 U.S. 129; Peoples Ferry Company v. Beers, 51 U.S. 393; Norton v. Switzer, 93 U.S. 355, 366; Cope v. Vallette Dry Dock Co.,

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119 U.S. 625; The Robert W. Parsons, 191 U.S. 17; The Moses Taylor, 4 Wall. 411; Steamship Co. v. Chase, 16 Wall. 552; Knapp v. McCaffrey, 177 U.S. 638; Atlantic Transport Co. v. Imbrovek, 234 U.S. 52; Southern Surety Co. v. Tubbs, 199 S.W. 343.)

Jeremiah F. Connor and Robert W. Bonynge for appellant. The employer and insurance carrier have waived any question as to the constitutionality of the act, and are estopped from raising the question at this time. (Vose v. Cockcroft, 44 N.Y. 415; Steers v. L., N.Y. & P. S. S. Co., 57 N.Y. 1, 7; People v. Fire Assn. of Philadelphia, 92 N.Y. 311, 326; Sentenis v. Ladew, 140 N.Y. 463; Mayor of New York v. Manhattan Railway Co., 143 N.Y. 1; Musco v. United Surety Co., 196 N.Y. 459; Daniels v. Tearney, 102 U.S. 415; Pierce v. Somerset Railway, 171 U.S. 641; Schweitzer v. Hamburg-Am. Line, 78 Misc. 448; Pensabene v. Auditore Co., 78 Misc. 538.) Respondents have lost their right to review or question the award of the commission by failing to raise the constitutional question upon the trial before the commission and by failing to appeal. (Vose v. Cockcroft, 44 N.Y. 415; Delaney v. Brett, 51 N.Y. 78; Steers v. L., N.Y. & P. S. S. Co., 57 N.Y. 1; Purdy v. Erie R. R. Co., 162 N.Y. 42, 51; 185 U.S. 148; Dodge v. Cornelius, 168 N.Y. 242; Mutual Life Ins. Co. v. McGrew, 188 U.S. 291; Minneapolis & St. Louis R. R. Co. v. Winters, 242 U.S. 353; Atlantic Coastline R. R. Co. v. Mims, 242 U.S. 532; Valley S. S. Co. v. Wattawa, 244 U.S. 202; Clemens v. Clemens & Grell, 180 A.D. 92.) The commission had jurisdiction of the subject-matter. (Hunt v. Hunt, 72 N.Y. 217; People ex rel. Davis v. Sturdevant, 9 N.Y. 263; People v. Talmadge, 194 Ill. 67; People v. Superior Court, 234 Ill. 186; Betts v. Bagley, 12 Pick. 572; Porter v. Purdy, 29 N.Y. 106; Lange v. Benedict, 73 N.Y. 12; Smith v. Central Trust

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Co., 154 N.Y. 333; Hughes v. Cuming, 165 N.Y. 91; Belden v. Wilkinson, 44 A.D. 420; Christiansen v. Mendham, 45 A.D. 554.)

Merwyn H. Nellis for respondents. The Federal Constitution and the Judicial Code as existent at the time of the death of claimant's decedent and at the time the award here sought to be enforced was attempted to be made, excluded the state industrial commission from jurisdiction of subjects within the maritime jurisdiction of the Federal District Courts. (Southern Pacific Co. v. Jensen, 244 U.S. 215; Hines v. Trevor, 4 Wall. 568; Dougan v. Champlain Transp. Co., 56 N.Y. 1; Benedict's Admiralty [4th ed.], 107; Brookman v. Hamill, 43 N.Y. 562; The Jerusalem, 2 Gall. 350; Steamboat Co. v. Chase, 16 Wall. 534; Matter of Walker v. Clyde S. S. Co., 215 N.Y. 529; 244 U.S. 255.) The attempted award to the widow of Patrick Doey is void and utterly ineffectual because Patrick Doey's employment, work and death were of a maritime nature and as such the subject-matter upon which the state industrial commission attempted to adjudicate was a matter exclusively within the maritime jurisdiction of the Federal District Courts. (Rhode Island v. Massachusetts, 12 Pet. 657; Bank of United States v. Deveraux, 5 Cranch, 6; Waring v. Clark, 5 How. [ U. S.] 441; Cohens v. Virginia, 6 Wheat. 264; The Resolute, 168 U.S. 437; P. W. & B. R. R. Co. v. P. H. DeG. S. T. Co., 23 How. [ U. S.] 209; New York & Long Branch Steamboat Co. v. Johnson, 195 F. 740; Todd v. The Tulchem, 14 Phila. 550; Reed v. Weule, 176 F. 660; The City of Salem, 10 F. 843.) Unless the exclusive features of admiralty jurisdiction, depriving compensation commissions of jurisdiction to make an award wherever Federal District Courts have jurisdiction under the clauses of the Constitution and Judiciary Code quoted above, is held

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applicable to all cases pertaining to ships and shipping, the confusion arising from conflicting decisions against which the Jensen case was directed will prevail. (Tallac Co. v. Pillsbury, 168 P. 17; The Belfast, 7 Wall. 640; Workman v. New York City, 179 U.S. 558.) Since the industrial commission had not jurisdiction of the subject-matter no act, consent or acquiescence of respondents could render valid and effectual the award attempted to be made. (Buckles v. State, 221 N.Y. 418; Sauerbruen v. Hartford Life Ins. Co., 220 N.Y. 371; McCarty v. Parkhurst, 26 Abb. [ N. C.] 235; Dudley v. Mayhew, 3 N.Y. 9; Weinstein v. Douglass, 51 Misc. 559; Pitt v. Davison, 37 Barb. 97; McMahon v. Rauler, 47 N.Y. 72; Kundolf v. Thalheimer, 12 N.Y. 593; Risley v. Phoenix Bank, 83 N.Y. 338; Elliot v. Piersol, 1 Pet. 328.)

MCLAUGHLIN, J.

On the 31st of July, 1916, Patrick Doey, an employee of Clarence P. Howland Co., Inc., while engaged in making repairs on the steamship Normandie, lost his life by falling down a hatchway. His widow, on behalf of herself and infant children, filed a claim with the state industrial commission, under chapter 41 of the Laws of 1914, for compensation for his death. The commission recognized the validity of the claim and in March, 1917, made an award directing that the same be satisfied by weekly payments. The employer and insurance carrier acquiesced in the award until May 21, 1917, when the Supreme Court of the United States handed down its decisions in Southern Pacific Co. v. Jensen (244 U.S. 205) and Clyde Steamship Co. v. Walker (Id. 255) holding that the New York State Workmen's Compensation Law (Laws of 1914, chap. 41), in so far as it applied to contracts maritime in nature, was void, inasmuch as the same was in contravention of article III, section 2, of the Federal Constitution extending the judicial power of the United States to all cases of

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admiralty and maritime jurisdiction; also in contravention of section 9 of the Judiciary Act of 1789, continued in Judicial Code of 1911, paragraphs 24 and 256 (36 Statutes at Large, 1091, 1160; chap. 231, Comp. Statutes, 1916, pars. 991, 1213), by which the District Courts of the United States are given 'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction; * * * saving to suitors, in all cases, the right of a common law remedy,...

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