Opinion
January 19, 1928.
Morris Wagman, for the plaintiff.
Murray R. Paris, for the defendant Reiss.
Plaintiff was injured, as he claims, through the negligence of defendants. The Hanman Building Corporation was the general contractor on a building operation. Isidore Reiss was a subcontractor doing the roofing work. Plaintiff was employed by another subcontractor doing the carpenter work. Defendant Reiss wishes to amend his answer to plead that plaintiff's sole remedy is in compensation. The amendment is opposed as insufficient in law. Compensation would cover plaintiff and be his exclusive remedy, as between him and his employer. The statute (Workmen's Compensation Law, § 56) also attempts to settle plaintiff's rights against the general contractor, defendant Hanman Building Corporation, and provides compensation as the exclusive remedy, although there is no contractual relationship between plaintiff and the general contractor. It is believed by many, familiar with the subject, that the Constitution (Art. 1, § 19) does not, without some strain of interpretation, authorize the amendment. (Workmen's Compensation Law, § 56.) The argument is made that, while the amendment was passed to accomplish a humanitarian and practical result, there is, as yet, no constitutional authority for it. The Constitution, it is said, authorized compensation as a substitute for litigation between employer and employee, but not as between those sustaining no such relationship. There is much force to the contention. But so far as this court is concerned, it must follow Casey v. Shane ( 221 A.D. 660), if pertinent here. The moving defendant relies upon Casey v. Shane for the proposed amendment. The proposed amended answer is insufficient. First, it contains no allegation that either defendant Reiss or the general contractor have secured compensation, in one of the ways provided by the act. Second, even if such allegation were made, the proposed amended answer would still be insufficient, because Casey v. Shane merely holds section 56 to be a constitutional act; and section 56 applies only as between the general contractor and employees of any subcontractor. There is nothing in section 56 that attempts to substitute the remedy of compensation for litigation, in cases of personal injury, as between the employees of one subcontractor and another subcontractor, in any hazardous occupation, conducted by a general contractor. The motion is denied, with ten dollars costs.