
    Frank Herbst, an Infant, by Frederick Herbst, His Guardian ad Litem, Respondent, v. Kellogg Manufacturing Company, Appellant.
    Second Department,
    April 20, 1906.
    Negligence — Labor Law — employment of child under sixteen years of, agé—erroneous charge.
    When in an action to recover for personal- injuries to an infant under sixteen years of age, employed contrary to the provisions of section 70 of the Labor Law, the plaintiff has testified that upon being hired he said nothing about his age, a new trial will be granted when the court has charged that the plaintiff ■did say that he was under sixteen years of age. '
    
      Appeal by the defendant, the Kellogg Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of June] 1905, upon the verdict of a jury for §1,700, and also from an order entered in said clerk’s office on the 15th day of J une, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      James Crooke McLeer [William E. C. Mayer with him on the brief], for the appellant.
    
      William E. Buckley, for the respondent.
   Hirschberg, P. J.:

The judgment arid order cannot be sustained. The action is for negligence, and the chief, if not the only, negligence litigated involved the violation by the defendant of section 70 of the Labor Law (Laws of 1897, chap. 415). By that section it is provided that “ A child under the age of fourteen years shall not be employed in any factory in this State. A child between the. ages of fourteen and sixteen years shall not be so employed, unless a certificate executed by a health officer be filed in the office of the employer.”

The plaintiff was employed to work in defendant’s factory when he was under fourteen years of age. He was injured while at work on the 1st day of November, 1902. The action was brought under the Labor Law (supra), and was submitted to the jury on the theory that in determining the question of the defendant’s negligence they could consider the fact that the plaintiff was under sixteen years of age at the time of his employmént, and thaf the defendant knew it, but, nevertheless, employed him without a certificate. The court charged the 'jury as follows: “Now, as to the question of the age' of the plaintiff. The plaintiff says that when he went to engage himself to work for the defendant in this case, the superintendent told him that it was not necessary for him to have a certificate after he had told the superintendent that he was not sixteen years of. age.” This was excepted to by the defendant, but the court stated: “I think I will let that stand. I think he .said so.”

The plaintiff testified expressly that when he was employe^ nothing was said to or by the defendant’s superintendent as to his age. His testimony on the subject was as follows“ I-didn’t tell him I was sixteen years old when he employed me. I am sure of that. He didn’t say anything about my age.- I didn’t tell him I was sixteen. He said I didn’t need a certificate. That wasn’t because I told him that I was sixteen years, old.” The positive statement in the charge of the court, to the effect that the plaintiff" did testify that he had informed the superintendent that he was not sixteen years of age, adhered to after an exception had been taken and the attention- of the court directed to the evidence upon the subject, may very well have misled the jury, and requires a-reversal ■ in the interests of justice.'

The judgment and order should be reversed'.

Woodward, Jenks, Rich and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the -event.  