Barnhart v. American Concrete Steel Co.

Appellate Division of the Supreme Court of New York

Barnhart v. American Concrete Steel Co.

181 A.D. 881

Appellate Division of the Supreme Court of the State of New York·Decided November 15, 1917·Published·Cited by 1 cases

Opinion

Blackmab, J. (dissenting):

The Constitution of the State of New York (Art. 1, § 18) provides that “ The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated.” The right of action sounds in tort, and is governed by the laws of the State where the injuries are inflicted. By this provision, it became a cause of action vested in the personal representative of the deceased, and cannot be waived by the employee, for it is not his nor derived from him, but granted by the Legislature and confirmed by the Constitution directly to his personal representatives representing his next of kin.

† Passing for the moment the constitutional and legislative enactment regarding workingmen’s compensation in the State, I think it must be admitted that in ease of a cause of action arising in this State, the Legislature of the State of New Jersey has no power to abrogate it, nor to authorize an employee to bargain away that right, given by our statute to his next of kin. Article 1, section 19, of our Constitution, adopted as an amendment in 1913, provides that “ Nothing contained in this Constitution shall be construed to limit the power of the Legislature to enact laws for the protection of the lives, health, or safety of employees; or for the payment * * * of compensation for injuries to employees or for death of employees resulting from such injuries * * * or to provide that the right of such compensation, and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries,” etc. This, amendment to the Constitution restored the legislative competency over this class of actions in so far as they grew out of the relations of master and servant; and the Workmen’s Compensation Law ‡ has, pro tanto, abrogated it. But the amendment did not confer on the Legislature of New Jersey the power to abrogate this cause of action in the State of New York. How, then, can a legislative act in New Jersey, and a contract made thereunder, abrogate a cause of action for damages in tort, created by a New York statute, and protected by a New York Constitution?

See Code Civ. Proe. § 1902 et sea.— [Rep.

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Blackmab, J. (dissenting):

The Constitution of the State of New York (Art. 1, § 18) provides that “ The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated.” The right of action sounds in tort, and is governed by the laws of the State where the injuries are inflicted. By this provision, it became a cause of action vested in the personal representative of the deceased, and cannot be waived by the employee, for it is not his nor derived from him, but granted by the Legislature and confirmed by the Constitution directly to his personal representatives representing his next of kin.

† Passing for the moment the constitutional and legislative enactment regarding workingmen’s compensation in the State, I think it must be admitted that in ease of a cause of action arising in this State, the Legislature of the State of New Jersey has no power to abrogate it, nor to authorize an employee to bargain away that right, given by our statute to his next of kin. Article 1, section 19, of our Constitution, adopted as an amendment in 1913, provides that “ Nothing contained in this Constitution shall be construed to limit the power of the Legislature to enact laws for the protection of the lives, health, or safety of employees; or for the payment * * * of compensation for injuries to employees or for death of employees resulting from such injuries * * * or to provide that the right of such compensation, and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries,” etc. This, amendment to the Constitution restored the legislative competency over this class of actions in so far as they grew out of the relations of master and servant; and the Workmen’s Compensation Law ‡ has, pro tanto, abrogated it. But the amendment did not confer on the Legislature of New Jersey the power to abrogate this cause of action in the State of New York. How, then, can a legislative act in New Jersey, and a contract made thereunder, abrogate a cause of action for damages in tort, created by a New York statute, and protected by a New York Constitution?

See Code Civ. Proe. § 1902 et sea.— [Rep.

Barnhart v. American Concrete Steel Co., 181 A.D. 881 (N.Y. Ct. App. 1917).

Pincite

181 A.D. 881 (Barnhart v. American Concrete Steel Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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