Claim of Sackolwitz v. Charles Hamburg & Co.

Claimant Leo Sacklowitz was injured while working, under the name of his older brother Jack Sacklowitz, for the employer-respondent. When applying for the job, claimant had presented a referral card issued to his brother by an employment agency, and, when asked by the employer for his social security number, had given the number of his brother. In fact, claimant was under, while his brother was over, eighteen years of age. The employment of one under eighteen years of age in respondent’s factory was prohibited by sections 130 and 131 of the Labor Law. The Industrial

The Appellate Division reversed so much of the award as had doubled the amount otherwise recoverable, the majority of that court stating, among other things, that “ Claimant obtained employment by aid of a false statement in writing as to his identity in violation of the Penal,Law (§ 939).” ( 269 App. Div. 803 .) The presiding justice, dissenting, noted that violations of the,Labor Law are malum prohibitum (see, as to this, Penal Law, § 1275, also People v. Taylor, 192 N. Y. 398 , 400, and People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25 ). Claimant appeals to this court.

The well-understood purposes of the Workmen’s Compensation Law compel the conclusion that the obligation imposed by section 14-a is absolute. Equally compelling is the particular history and special intent of that section. In Bogartz v. Astor ( 293 N. Y. 563 ), we held that the additional payment exacted by section 14-a is not a penalty but is, as the statute itself calls it, “ increased compensation ”. Imposed at a higher rate, it differs in amount, but not in character, from the lesser compensation awarded to injured adult workers. It is not, we made plain in Bogartz v. Astor (supra, p. 566 ), “ a mere pecuniary punishment of the employer ” nor is it “ anything essentially different, from the other monetary benefits secured by the statute to workmen and their dependents.” In Matter of Molnia v. Kaplan & Co. ( 293 N. Y. 700 ), also, we held that section 14-a imposes no penalty, but simply grants compensation at a higher rate, and so held the Circuit Court of Appeals in the Dearborn case (In re Dearborn Mfg. Corporation, 92 F. 2d 417 , certiorari denied sub nom. Klipstein v. Davidowicz,

The history of section 14-a confirms the view that misrepresentations as to age or identity, made to obtain employment, do not affect the result at all. Before there was a Workmen’s Compensation Law, a master sued by an injured infant worker-whom he had employed in violation of the Labor Law, could be held liable for failing to exercise due care in ascertaining the facts as to the werker’s age (Koester v. Rochester Candy Works, 194 N. Y. 92 ). This court held that “ estoppel ” had nothing to do with the matter (p. 96). The gist of the liability there enforced was negligence and there was no negligence if the employer had made proper inquiries. The first workmen’s compensation statutes had no section 14-a and made no specific provision for awards of workmen’s compensation to injured infants whose employment violated the Labor Law. When, after the enactment of the Workmen’s Compensation Law, such an infant attempted to bring a negligence action against his-employer, the courts dismissed it, holding that the exclusive liability provision of section 11 of the Workmen’s Compensation Law forbade the prosecution of the suit (Noreen v. Vogel & Bros., Inc., 231 N. Y. 317 ). The express ground of that decision was that the relation of employer and employee existed between them, “ irrespective of the fact that the plaintiff secured employment by misrepresentation as to his age and that defendant omitted the exercise of due diligence to ascertain his age ” (p. 322). Legal or illegal, employment and subsequent injury brought the case under the Workmen’s Compensation Law and neither the worker’s misrepresentations nor the master’s carelessness in discovering them barred an award. Two, years after the Noreen decision the Legislature enacted section 14-a. Undoubtedly the Legislature was following a recommendation contained in the second report of the “ Now York State Commission to" Examine Laws Relating to Child Welfare ” (Legislative Document No. Ill of 1923). That report cited figures gathered by the State Labor Department which showed numerous seriously disabling accidents involving young children illegally employed. The commission pointed out that a provision for double compensation

The order of the Appellate Division should be reversed ana the award reinstated, with costs in this court and in the Appellate Division.

Lottghban, Ch. J., Lewis, Conway, Thaoher and Dye, JJ., concur.

Ordered accordingly.