
    Thomas Shinnick, Respondent, v. Clover Farms Company, a Domestic Corporation, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1915.)
    Workmen’s Compensation Law — intention of legislature under — when employee may bring action to recover for injuries sustained in hazardous employment.
    It cannot be assumed that by the Workmen’s Compensation Law (Laws of 1914, chap. 41) the legislature intended to deprive an employee of the right to recover damages for injuries not constituting disability within the meaning of said statute and thereunder an employee may bring an action to recover for injuries received in a hazardous employment by a bite from a horse necessitating amputation of a part of plaintiff's ear.
    Appeal by the defendant from an order of the City Court of the city of New York, borough of Manhattan, overruling demurrer to complaint.
    Bertrand L. Pettigrew (Edward E. Reardon, of counsel), for appellant.
    Henry Silverman, for respondent.
   Guy, J.

The action is by employee against employer to recover damages-for injuries sustained November 14, 1914, by a bite from a horse, necessitating the amputation of part of plaintiff’s left ear.

The defendant demurred- o.n the ground that the complaint does not state facts sufficient to constitute a cause of action. It is conceded that under the law as it was prior to July 1, 1914, the complaint would not be demurrable; but the specific objection is made that as it appears the injuries were received in a hazardous employment, as defined in section 2 of the Workmen’s Compensation Law (Laws of 1914, chap. 41), in the absence of an allegation that the master has failed to secure the payment of compensation for his injured employees, a cause of action is not alleged.

Section 10 of the statute invoked provides for the payment of compensation for disability or death ” of employees resulting from accidental personal injuries, and section 11 states that “ The liability prescribed by the last preceding section shall be exclusive, except that if an employer fail to secure the payment of compensation for his injured employees- and their dependents, as provided in s-ection fifty of this chapter, an injured employee, -or his legal representative in •case death results from the injury, may, at his option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury; and in such an action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, * * * or that the injury was due to the contributory negligence of -the employee.”

- Section 15 contains a schedule of. compensation for various disabilities, including the loss of a finger, hand, arm, foot, leg and eye — that is, the loss or impairment of the use of a member of the body which is of valuable assistance in the performance of labor. But the statute does not provide any rate of compensation for injuries which may not disable the- employee, but which may constitute injury to -him through disfigurement or otherwise, as by the loss of an ear or the nose.

The defendant admits- that the plaintiff has lost a part of his ear as a result of the defendant’s negligence; and as it cannot be assumed that the legislature, in -enacting the beneficent provisions of' the Workmen’s Compensation Law, intended to deprive an employee of the right to recover damages for injuries not constituting disabilities within the meaning of the statute, the order must be affirmed, with ten dollars costs and disbursements.

Order affirmed, with ten dollars costs and disbursements, with leave to the defendant to withdraw the demurrer and answer within six days- after service of a copy of the order entered hereon in the City Court upon payment of costs in this court and in the court below.

Bijur and Pendleton, JJ., concur.

Order affirmed, with ten dollars costs, with leave to defendant to withdraw demurrer within six days after service of copy of order upon payment of costs.  