Citations
- 252 N.Y. 1
Full opinion text
Pound, J.
On August 3, 1919, claimant, then under the age of fifteen years, was injured during the course of his employment by the Pouvailsmith Corporation. Notice of injury was promptly given in his behalf. It was the formal notice of injury which could not by any possibility be construed as a claim for compensation under our decision in Kaplan v. Kaplan Knitting Mills, Inc. (248 N. Y. 10). No claim for compensation was filed within a year after the accident and the right to claim compensation is barred unless some exception is found in the law which takes the case out of the general provisions of Workmen’s Compensation Law (Cons. Laws, ch. 67), section 28.
A guardian ad liiem was appointed who brought an action for the infant against the employer to recover damages under the provisions of section 93, now section 146, of the Labor Law (Cons. Laws, ch. 31), which it was claimed gave a right of action for breach of statutory duty in employing a child under sixteen years of age. Judgment recovered in the action was reversed on the authority of Noreen v. Vogel & Bros., Inc. (231 N. Y. 317), which held that the Workmen’s Compensation Law provided an exclusive remedy. Within a year after the reversal, but nearly five years after the injury, the father of the infant presented a formal claim for compensation in behalf of claimant. No general guardian of the infant has ever been appointed. No question arises as to the sufficiency of the claim. The only question is whether the claim is barred by the Statute of Limitations.
At the time of the accident, section 116 of the Workmen’s Compensation Law provided: “ No limitation of time provided in this chapter shall run as against any person who is mentally incompetent or a minor dependent so long as he has no committee, guardian or next friend.”
As the law then read, it was held by this court in Matter of Cheesman (236 N. Y. 47) (a) that the rights of an injured infant were not saved by the provisions for a minor dependent, and (b) that Code of Civil Procedure, section 396, now Civil Practice Act, section 60, did not save the infant’s rights for the reason that section 28 of the Workmen’s Compensation Law was the controlling Statute of Limitations. It was also held in Matter of Grillo v. Sherman-Stalter Co. (195 App. Div. 362; affd., without opinion, 231 N. Y. 621), a death case, that the juxtaposition of the words “ guardian or next friend ” in the section as it then read compelled the conclusion that the parent of the child as guardian of the person (Domestic Relations Law [Cons. Laws, ch. 14], § 81) was a proper person to file the claim for compensation and that the bar of the statute prevailed when such parent had neglected to act in behalf of the infant. The decision must have been the same whether the guardian was a natural guardian or one appointed by the court since each was in default.
In Chase v. Ulster & Delaware R. R. Co. (215 App. Div. 581) it was held that the marriage of an infant woman terminated the natural guardianship of the mother and that section 116 prevented the statute from running as against her.
Under the language of section 116 as it read at the time of the accident, the default of the claimant was not excused. Section 116 was renumbered section 115 and materially amended, after the Statute of Limitations had run against claimant, by Laws of 1922, chapter 615, to read as follows: