Scherini v. Titanium Alloy Co.

Per Curiam. The suit is against an employer by a workman who alleges that while working in the employer’s plant, plaintiff “ sustained injuries to his health and aggravation thereof,” that these injuries were not accidental in character, and' that they were caused by the employer’s negligence and by his violation of various statutes in failing *534 to keep the plant free of smoke, noxious gases and other impurities. The complaint, further alleges that section 3, subdivision 2, of the Workmen’s Compensation Law (Cons. Laws, ch. 67), as amended by chapter 254 of the Laws of 1935, and article 4-A of that act, as added by chapter 887 of the Laws of 1936, or “ either or both ” of those enactments, are unconstitutional and void, as leaving without any remedy workmen who suffer injuries from impure air conditions through an employer’s fault, unless permanent and total disability results therefrom. The courts below have granted defendant’s motion under Rules of Civil Practice, 107, subdivision 2, for a dismissal of the complaint on the ground that the court has not jurisdiction of the subject of the action because the alleged cause of action comes exclusively within the coverage of the Workmen’s Compensation Law. While the complaint says nothing as to the dates of plaintiff’s employment by defendant, the dates, as supplied by defendant’s affidavit, and not disputed, are from November 5, 1936, to February 28, 1938. Nowhere in the complaint or affidavits is there any allegation that plaintiff has been disabled, partially or totally. In the absence of such an allegation, we of course cannot pass on the validity of provisions of article 4-A of the Workmen’s Compensation Law that there shall be no compensation for partial disability due to dust diseases (§ 66), and that the liability of an employer prescribed by that article shall be exclusive and in place of any other liability whatsoever (§ 72). Furthermore, even if the papers on this motion sufficiently alleged that plaintiff had been partly disabled by a dust disease through defendant’s fault, we would not be in a position to pass on plaintiff’s contention that sections 66 and 72 of the Workmen’s Compensation Law are unconstitutional in so far as they provide that an employee shall have no remedy or recovery against his employer for a partial disability resulting from dust diseases. Whether this contention be correct or not, plaintiff cannot bring an action at law to recover for such a disability. Even if *535 sections 66 and 72 were held to be invalid, plaintiff’s sole remedy would still be in proceedings under the Workmen’s Compensation Law and his rights to compensation would be governed by the provisions of that statute, as it stood before sections 66 and 72 were enacted, as to compensation for disability from occupational diseases. The judgment should be affirmed, "with costs.