
    Maggie Kenyon, by Her Guardian ad Litem, Daniel W. Cahill, Appellant, v. The Wm. P. Sanford Manufacturing Company, Respondent.
    Fourth Department,
    May 1, 1907.
    Negligence — employment of minor without certificate ■ contrary to Labor Law.
    '.In an action by a minor against her master for injuries alleged to have'been received through his negligence, the jury may on- the. question of negligence consider the .fact that the minor, a girl ■ fifteen years of age, was employed ■ without a certificate as required by the Labor Law.
    Williams and Reuse, JJ., dissented, - ,
    Appeal, by the plaintiff, Maggie Kenyon, by her guardian ad litem, Daniel W. Cahill, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 15th dayuf January, 1906, upon the verdiet of a jury rendered after a trial at the Jefferson Trial Term, dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 22d> day of January, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was commenced on the 3d day of June, 1905, to recover damages for injuries sustained by the plaintiff, alleged to have been caused solely through the negligence of the defendant.
    
      JY. F. Breen, for the appellant.
    
      John JY. Carlisle, for the respondent.
   McLennan, P. J.:

The acts or omissions of the defendant which it is claimed constituted actionable negligence and resulted in injury to the plaintiff' are set forth in the complaint. In effect it is alleged:

First', that plaintiff, then'being fifteen years of age, was employed by the defendant to work upon and operate a machine which was unsafe, defective and out of repair to defendant’s knowledge;

Second, that such machine was not propbrly guarded as required by law;

Third, that the defendant was negligent in employing the pláintiff in violation of the provisions of the Labor Law (Laws of. 1897, chap. 415, and the acts amendatory thereof), in that the defendant employed and permitted the plaintiff to work for_ it when she had not procured and filed with it an employment certificate as required by said act. . (See Labor Law, §70 et seq., as amd. by Laws of 1903, chap. 184:) -

The answer of the- defendant put in issue practically all the allegations of the complaint and in addition alleged that the injuries complained of resulted because of plaintiff’s own negligence. Proof was given by both 'parties tending to substantiate their respective claims, but it was practically conceded that no certificate of employment had been obtained and filed with the defendant prior to or at the time of plaintiff’s injury or employment. All the issue's thus raised either by the pleadings or proofs were submitted to the jury for its determination by a fair and impartial charge to which the appellant took no exception, except that the court refused to permit the jury to consider, as bearing upon defendant’s negligence, the fact that it employed the plaintiff and permitted her to work for it when she had not obtained an employment certificate. Such refusal presents practically the only question involved upon this appeal. The evidence as to whether or not the machine upon which the pláintiff was working was defective or out of repair, whether or, not the plaintiff had been properly instructed as to its operation and management, and whether or not it 'was properly guarded, raised questions of fact which were properly submitted to the jury. ' ■

But we think it was also competent for the jury to take into consideration, as bearing upon the question of defendant’s negligence, the fact that the plaintiff was employed, by it. without having obtained and. filed an employment certificate as required by the statute. (Sitts v. Waiontha Knitting Co., Ltd., 94 App. Div. 38; Dragotto v. Plunkett, 113 id. 648.)

In the case of Marino v. Lehmaier (173 N. Y. 530) it was. held that where a child under the age of fourteen years is employed in a factory, in case of injury to such child the bare fact of such employment is in and of itself some evidence of negligence on the part of the employer, because- such'employment was in violation of the statute. So in the case at bar, the employment of a child between the ages of. fourteen and sixteen years without having obtained and filed with the employer an employment certificate, is equally in violation of law,, and we can discover no distinction between the two cases. We think it was permissible for the jury to have taken into consideration, as- bearing upon the defendant’s negligence, the fact that'the plaintiff was employed by the defendant when she had not obtained and filed the certificate required by the statute.

We conclude that for- this error the judgment and order appealed ■ from .should be reversed and a new trial granted, with costs to’the appellant to abide event.

All concurred, except Williams and" Kruse, JJ., who dissented!

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.  