
    Charles Schmidt, an Infant, etc., Plaintiff, v. The Printing Business of Edwin C. Bruen, Defendant.
    (Supreme Court, Kings Trial Term,
    October, 1907.)
    Master and. servant — Master’s liability for injuries to servant: Nature and extent in general — Statutory provisions regulating employment of children: Actions — Admissibility of evidence — Negligence on part of master.
    Where a child between fourteen and sixteen years of age is employed in a factory without filing the certificate required by section 70 of the Labor Law, the failure to file the certificate does not constitute presumptive negligence on the part of the employer, in an action by the employee to recover for personal injuries, unless such failure was the proximate cause of the injury or a contributory cause.
    But where a child under sixteen years of age is set to work upon a dangerous machine, a presumption of negligence arises, and statements of parents, affidavits, advertisements and careful and painstaking investigations showing the child to he over sixteen may be given in evidence to meet and rebut the presumption of negligence arising from the mere employment.
    
      Motion for a new trial.
    Joseph A. Shay, for plaintiff.
    Krakower & Peters, for defendant.
   Crane, J.

It appears in this case that the certificate required by section 70 of the Labor Law was obtained from the board of health but was not filed with the defendant. Counsel for the plaintiff insisted that, under the case of Marino v. Lehmaier, 173 N. Y. 530, the failure to file this procured certificate constitutes • presumptive negligence, no matter how the plaintiff, a boy between fourteen and sixteen, got hurt. I do not so read that case. The failure to comply with the provisions of the Labor Law must have had something to do with the accident to be some evidence of negligence; that is, the failure must have been the proximate cause of the injury or a contributing cause, or it must appear that but for the noncompliance with the statute the accident might not have happened. There was no such connection between the failure to file the obtained certificate and the accident in this case. Having obtained the written sanction of the board of health, as provided by section 70; the fifteen year old plaintiff could legally work in a factory. If no certificate had been obtained, it could be said that perhaps the plaintiff could not get one; that the board of health might have -found him wanting in the requisites and have refused to certify to his qualifications; and thus his employment in a factory might have been prevented and the accident never have happened. In this way there is a connection between the failure to obtain and file the proper consent and the injury occurring in factory work. But, when the plaintiff has passed the examination provided and is of certified capacity, having obtained the health board’s written approval, he can legally work in any factory, the filing of the certificate being a detail required for other purposes than to legalize his employment. As the filing would and could not have prevented the employment, the failure to filé cannot be connected with the accident so as to be evidence of negligence.

In the cases cited (Kenyon v. Sanford Mfg. Co., 119 App. Div. 570; Sitts v. Waiontha Knitting Co., 94 id. 38. and Dragotta v. Plunkett, 113 id. 648), the certificate is referred to as having been neither obtained nor filed.

This conclusion is also in accordance with Lowry v. Anderson Co., 96 App. Div. 465.

In view of what I have stated, I shall not change my opinion or ruling that there was no evidence of negligence solely because the certificate obtained in pursuance to section 70 of the Labor Law was not filed.

When the provisions of section 81 are considered, then a different question arises. The plaintiff in this case was set to work upon a machine which the jury have found was dangerous. Proof that the boy was in fact under sixteen years of age and that he was put to work on or about a dangerous machine is evidence of negligence in accordance with the doctrine of the Marino v. Lehmaier case, supra. In an action for damages, based upon such negligence, there is no absolute presumption that the master knew the child’s age; nor is want of knowledge or honest belief that the child is over sixteen, based upon careful examination and inquiry, immaterial. Good faith, honest belief 'and want of knowledge would be no defense in a criminal prosecution or suit for penalty for violating' the prohibitory statute (People v. Werner, 174 N. Y. 134) ; but, as the Marino case holds the master to be liable in damages only for his negligence in employing a child under the specified age, statements of parents, affidavits, advertisements and careful and painstaking investigations showing the child to be over sixteen maybe given in evidence to meet and rebut the presumption of negligence arising from the mere employment. City of New York v. Chelsea Jute Mills, 43 Misc. Rep. 266, is not the law for an issue of negligence.

The Labor Law does not require the board of health to give a certificate that a child is under fourteen or over sixteen, but it does require a certificate to be obtained by children between the ages of fourteen and sixteen before they can be employed in a factory. The purpose of this is to prevent the employment of children between these ages, physically and otherwise incapable and who lack the proper intelligence and education. But our boards of health keep registers of the birth dates of children bom in the city, and it is common knowledge that similar records or church records are to be found in most places of birth outside of our city. The fact, therefore, that the employer taking a young child into his factory did not require some certificate of birth, if the child was alleged to be over sixteen, or did not make inquiry beyond the statements of parents, pressed perhaps by circumstances to falsify, may always be shown as bearing on the master’s negligence. But whatever may be proved for or against him, the liability is not absolute by the mere employment of a child under age. His negligence in employing the child is a question for the jury.

As in this case the court charged, in view of all the circumstances, that the master was presumed to know the age of the plaintiff when he was employed and called the attention of the jury to the means by which he could have ascertained his exact age, in fact, stated to them that the defendant was bound to know that the plaintiff was under sixteen years of age, which was a broader charge than the plaintiff was entitled to, he certainly has no just complaint because the jury decided against him, either on questions of negligence or contributory negligence.

Motion made by plaintiff for new trial denied.

Motion denied.  