People v. Donnelly

Rich, J.:

The respondent was charged in the information with the crime of failure to secure compensation to an employee, in that on October 5, 1918, being an employer of labor, engaged in the business of painting, a hazardous employment, as defined in group 42 of section 2 of the Workmen’s Compensation Law (as amd. by Laws of 1918, chap. 634), he failed to secure compensation to an employee.

It was conceded at the trial that the respondent carried no compensation at the time the employee was injured. The employee instituted an action against the respondent and recovered judgment for $2,000. At the close of the trial the court denied defendant’s motion to dismiss the information and found the respondent guilty, but made an order arresting judgment. This appeal is from that order.

The law as it was enacted in 1914 provided (§ 52) that failure to secure the payment of. compensation should have the effect of enabling the injured employee or his dependents in the event of his death, to maintain an action for damages in the courts, as provided in section 11 of the act. By chapter 622 of the Laws of 1916, section 52 was amended so as to provide as follows:

“ § 52. Effect of failure to secure compensation. Failure to secure the payment of compensation shall constitute a misdemeanor and have the effect of enabling the injured employee, or in case of death, his dependents or legal representatives, to maintain an action for damages in the courts, as prescribed by section eleven of this chapter.”

The penalty originally prescribed by section 50 for failure to secure compensation was one dollar for each employee for every day during which the failure continued. This section was later amended to provide a penalty of an amount equal to the pro rata premium which would have been payable for insurance in the State fund, for the period of non-compliance. (See § 50, as amd. by Laws of 1916, chap. 622, and Laws of 1917, chap. 705.) The employee’s alternative remedy (§ 11) also provided that in the event of the employer’s failure to secure the payment of compensation, the employee, or his legal representative in case death resulted from the injury, might elect to maintain an action for damages in the courts, in which action the employer would be precluded from pleading as a defense that the injury was caused by the negligence of a fellow-servant or that the employee assumed the risk of his employment or that the injury was due to contributory negligence. By amendment of said section 11 it was also provided that it should not be necessary for the plaintiff to plead or prove freedom from contributory negligence in addition to depriving the employer of the defenses aforesaid. (See Laws of 1914, chap. 316; Laws of 1916, chap. 622.)

It' is respondent’s contention that inasmuch as the words contained in section 52, “ shall constitute a misdemeanor and have the effect,” etc., show that the Legislature’s purpose was simply to further describe and denounce the act, for which the employer was penalized by being deprived of his common-law defenses, that the use of the expression “ shall have the effect,” in connection with the granting to the employee of a purely civil remedy, is incompatible with the idea that the misdemeanor referred to was one to be punished under section 1937 of the Penal Law. It is also urged by respondent that judgment was properly arrested because no violation of the statute was alleged or proved. The district attorney maintains that the information properly and sufficiently charged the respondent with failing to secure compensation, a misdemeanor under section 52, an offense which the trial court had jurisdiction to try, and inasmuch as the section fixes no punishment, the punishment therefor must be found in section 1937 of the Penal Law.

People v. Stevens (13 Wend. 341, 342) enunciates the principle that where a statute creates a new offense by making an act unlawful which was lawful before, and prescribes a particular penalty and mode of proceeding, that penalty alone can be enforced. In that case Mr. Justice Sutherland, writing for the court, pointed out that the Legislature had seen fit to declare in the act under consideration that “all offences against the provisions of this title shall be deemed misdemeanors, punishable by fine and imprisonment.” In that case, although the defendant had been sued by the overseers of the poor, and the penalty prescribed by the statute recovered from him, it was held that the defendant was in addition properly indicted and fined. (See 1 R. S. 680, §§ 15, 16; Id. 681, § 19; Id. 682, § 25.) In the instant case, however, the statute (§ 52, as amd. supra) provides that failure to secure the payment of compensation “shall constitute a misdemeanor and have the effect of ” enabling the injured employee, or" in case of death, his dependents or legal representatives, to maintain action for damages in the courts, as prescribed by section 11 of the act. The distinction is obvious. The present statute does not provide, as it did in the Stevens case, that the penalty shall be fine and imprisonment, in addition to the deprivation of the employer’s ordinary common-law defenses in an action by the employee, and as a penalty, an amount equal to the pro rata premium which would have been payable for insurance in the State fund for such period of non-compliance. (§ 50, as amd. supra.) While it terms the act a “ misdemeanor,” the language immediately following to which it is' connected by the conjunction “ and,” without punctuation, indicates, I think, that the failure to secure compensation shall have the effect of enabling the injured employee to maintain his action for damages as provided in section 11 of the act, which section penalizes the employer to the extent of depriving him of his common-law defenses. The statute created an offense which was not such at common law; and the legislative intent was to term it a misdemeanor and prescribe the penalties, viz., deprivation of the employer’s common-law defenses in the action which the employee is permitted to bring in the event his employer fails to secure compensation, and the monetary penalties recoverable under section 50.

The authorities cited by the district attorney are distinguishable. The Stevens case was one where the statute prescribed a penalty, but also expressly authorized “ fine and imprisonment; ” in Behan v. People (17 N. Y. 516) the act complained of was unlawful prior to the statute; in People v. Meakim (133 id. 214) no penalty was prescribed by the statute.

It follows, therefore, that the order must be affirmed.

Mills and Manning, JJ., concur; Jay cox, J., reads for reversal, with whom Blackmar, P. J., concurs.