Gardner v. Shepard Niles Crane & Hoist Corp.

• Citation: 52 N.Y.S.2d 313,268 A.D. 561
• Parties: HOMER GARDNER, Appellant, v. SHEPARD NILES CRANE & HOIST CORP., Respondent.
• Decision Date: 29 December 1944
• Court: United States State Supreme Court (New York)

268 A.D. 561

52 N.Y.S.2d 313

HOMER GARDNER, Appellant, v. SHEPARD NILES CRANE & HOIST CORP., Respondent.

Supreme Court of New York, Third Department.

December 29, 1944

APPEAL from an order of a Special Term of the Supreme Court Cortland County (COON, J.), entered March 16, 1944, which granted a motion by defendant for judgment in its favor on the pleadings.

COUNSEL

Gaylord Riggs, attorney for appellant.

Tucker & Bisselle, attorneys (Morgan F. Bisselle of counsel), for respondent.

HILL P. J.

Plaintiff appeals from an order of the Cortland Special Term that dismissed the complaint which pleads that through defendant's negligence in failing to provide a safe place to work as required by the Labor Law, plaintiff suffered injury during the last three months of 1940 and in 1941 prior to May 5th, and 'That the injuries and disabilities suffered by plaintiff are not compensable under the Workmen's Compensation Law of the State of New York.' The specific assertion in the complaint is that defendant failed 'to equip its machines on which plaintiff worked with hoods, pipes, suction devices and exhaust fans, or other protective devices, to properly draw out the dusts created by dry grinding,' and that the brass and bronze dust was inhaled by the plaintiff 'and by reason thereby [plaintiff] became so sick, sore and disabled that he was compelled to give up work.' That because of the failure by defendant to provide equipment for the removal of the dust 'plaintiff contracted serious lung and internal conditions which have prevented him from engaging in any manual work, and which have rendered him sick, sore and disabled, and permanently disabled him from performing any manual work.'

It is the theory of the appellant that the complaint corresponds to the one considered by the Court of Appeals in Barrencotto v. Cocker Saw Co. (266 N.Y. 139) and that the injury alleged occupies the field discussed in that case as being one 'in which the statute fails to impose liability, on the part of an employer, to provide compensation for injury or death, regardless of fault; and in which an injured person may seek damages by action at law, where there has been fault.' By an amendment to the Workmen's Compensation Law in effect June 6, 1936, 'temporary or permanent total disability or death from silicosis or other dust disease' is within the purview of section 66 (Workmen's Compensation Law) and compensation is payable to employees enumerated in section 3 of the Act, or to their dependents. The Barrencotto case (supra) decided in 1934, applied to dust disease contracted prior to September 1, 1935, when the amendment adding group 28 to subdivision 2 of section 3 (Workmen's Compensation Law) became effective. (L. 1935, ch. 254.) (Mnich v. American Radiator Co., 263 A.D. 573, affd. 289 N.Y. 681.)

Total disability, either temporary or permanent, caused by silicosis 'and other dust diseases' (whether classified as an occupational disease or not) was included by article 4-A of the Workmen's Compensation Law. (L. 1936, ch. 887, eff. June 6, 1936.) Plaintiff pleads that his injury is total and permanent. The 1935 and 1936 amendments (supra) are discussed in Powers v. Porcelain Insulator Corp. (285 N.Y. 54).

This motion was made under rule 112 of the Rules of Civil Practice, and the allegations of the complaint are accepted as true, as the motion is in the nature of the old demurrer. (Rosenblum v. Manufacturers Trust Company, 245 A.D. 333.) Issues of fact will not be determined, and the motion must be decided solely on the pleading assailed. (Pletman v. Goldsoll, 264 A.D. 393.)

The complaint failed to allege the necessary facts to permit the bringing of a common-law action mentioned as an 'alternative remedy' (Workmen's Compensation Law § 72) by pleading that the defendant employer had failed to secure payment of compensation for his injured employees and their dependents. 'An action at common law was not available to plaintiff unless she alleged and established by proof that the Albee Company had failed to secure payment of compensation to Kuhn as provided in the Workmen's Compensation Law. [Citation.] This she failed to do * * * and her remedy against Albee under the Workmen's Compensation Law is exclusive.' (Kuhn v. City of New York, 274 N.Y. 118, 128.) The complaint alleged that plaintif...