to him while engaged in his employment, but only against accidents arising out of and in the course of that employment; and an accident caused by a fellow workman doing a wrongful act entirely outside the scope of his employment is not an accident so arising, unless it appears that what happened was a risk reasonably within the contemplation of the employer.

Appeal from Supreme Court.

Proceeding by Jennie McNeil, guardian of Albert McNeil, a minor, and others, for compensation for injury under the Workmen's Compensation Act, opposed by the Mountain Ice Company. Compensation was awarded, and, from a judgment of the Supreme Court affirming the award, the Mountain Ice Company appeals. Reversed.

M. Casewell Heine, of Newark. for appellant.
James H. Bolitho, of Rockaway, for appellee.

WALKER, Ch. Albert McNeil, 19 years old, was employed by the Mountain Ice Company, as was also Edward Toomey, 15 years old. On January 28, 1914, Toomey struck McNeil a blow on the head with an ice pick and injured him. On the day of this occurrence the boys had been working together in the icehouse, and Toomey several times tried to pull from under McNeil a box upon which he sat while engaged in his work. McNeil repeatedly told him to stop. Finally they had a scuffle during which the president and the foreman of the ice company came in and saw what was going on and ordered both boys back to work, and they complied. McNeil appears not to have been the aggressor in this skylarking, but that is immaterial. Afterwards, and while McNeil was engaged at his work, Toomey struck him a blow on the side of his head with an ice pick, fracturing his skull and rendering him unconscious.

[1, 2] Jennie McNeil, as guardian for Albert, petitioned the judge of the Morris common pleas for compensation for the injury to the boy, under the Workmen's Compensation Act (P. L. 1911, p. 134), and proceedings were thereupon had in that court, which resulted in the judge finding that McNeil sustained personal injuries by an accident arising out of and in the course of his employment by the Mountain Ice Company, and awarding compensation, costs, and counsel fee under the statute. From this judgment the ice company appealed to the Supreme Court, where the judgment was affirmed. The ice company has now brought the case before this court on appeal from the Supreme Court.

The Supreme Court (103 Atl.) in its opinion correctly states the facts and rightly says that the single question presented for review relates to a finding by the court of common pleas that the accident to the employee arose out of his employment. It is conceded that it arose in the course of his employment. The appellant here relies upon our case of Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203,

and that is the only case cited by the Supreme Court in its opinion, in which it says it is to be distinguished from the case at bar. In this we think the Supreme Court has erred.

In Hulley v. Mossbrugger we held that an employer is not charged with the duty to see that none of his employees assaults any other one of them, either willfully or sportively. The Supreme Court in seeking to distinguish Hulley v. Moosbrugger from the case at bar observed that in the latter it appeared that the master had knowledge of what was transpiring between the two youths and ordered them back to work, and that therefore it cannot be fairly said that what did happen was not a risk reasonably within the contemplation of the master and incident to the employment under the then existing circumstances.

We think that because of the skylarking which came under the observation of the president and superintendent of the ice company's plant, namely, skylarking between those boys, charged the president and superintendent with contemplating no more than that the same thing might occur again, that is, skylarking or horseplay, not that one boy might thereafter commit an atrocious assault upon the other.

This case is entirely unlike the McNicol Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306 (cited in Hulley v. Moosbrugger, 88 N. J. Law, at page 163, 95 Atl. 1007, L. R. A. 1916C, 1203), for there it was held that injuries resulting in the death of an employee while doing work, from blows or kicks given him by a fellow workman in an intoxicated frenzy and passion, such fellow workman being known by the superintendent to have the habit of drinking to intoxication, and when in that condition to be quarrelsome, dangerous, and unsafe to work with, was knowingly permitted to work on the day of the injury while in such condition of intoxication, and it was held that the injury thus received arose out of and in the course of the workman's employment; while here the only propensity which was discovered to the officers of the company by the conduct of the boys was that one or both were likely to engage in skylarking or horseplay, a thing which most, if not all, boys do, without any resulting criminal assault, and without any contemplation of such result by any one, adult or infant.

The case before us is much more like that of Armitage v. L. & Y. Railway Co. (1902) L. R. & 2 K. B. 178 (also cited in Hulley v. Moosbrugger, 88 N. J. Law, 165, 95 Atl. 1007, L. R. A. 1916C, 1203), in which a boy 16 years of age was pushed into a pit by another boy, where they were at work, for a "lark," and becoming angry picked up a bit of iron and threw it at the boy who had pushed him in, but hit another boy in the eye, injuring him, for which he was not allowed to recover damages. Collins, M. R., observed that this was a wrongful act entirely outside of the scope of the employment, and that the statute did not provide an insurance for a workman against every happening

to him while engaged in his employment, but only against accidents arising out of and in the course of that employment, and that an accident caused by a fellow workman doing a wrongful act entirely outside the scope of his employment, was not such an accident so arising.

Walther v. American Paper Company, 89 N. J. Law, 732, 99 Atl. 263, shows that an atrocious assault (there resulting in death) upon a workman is not considered as arising out of his employment, when the employee is struck down in circumstances in no way relating to the employment.

In our opinion the case at bar is not distinguishable from that of Hulley v. Mossbrugger, and therefore the judgment of the Supreme Court must be reversed, to the end that the award of compensation in the common pleas court may be vacated and set aside.

SUPREME COURT OF NEW YORK.
APPELLATE DIVISION, THIRD DEPARTMENT.

SULLIVAN
V.

HUDSON NAV. CO. and seven other cases.*

1. WORKMEN'S COMPENSATION-JURISDICTION OF COMMISSION WAIVER OF OBJECTION.

Failure of the insurance carriers and employers, when claims were before the State Industrial Commission for determination, to question its jurisdiction over the subject-matter, does not bar them, either on the theory of waiver or estoppel, from afterwards doing so, though this can be only by appeal, if facts on which jurisdiction depends were before it for determination.

2. MARITIME CLAIMS-INJURY TO EMPLOYEE REPAIRING VESSEL.

The claim of carpenters against their employer, engaged in making alterations or repairs on a ship in navigable waters to fit it for a particular cargo, for injuries received on the ship, are maritime, and so within the jurisdiction of admiralty, to the exclusion of the State Industrial Commission under the Workmen's Compensation Law (Consol. Laws, c. 67), having no common-law jurisdiction.

3. MARITIME CLAIMS-INJURY TO EMPLOYEE ON WHARF. Claim for injury to an employee under a maritime contract, though received on a wharf, is within the jurisdiction of admiralty, to the exclusion of proceedings before State Industrial Commission under the Workmen's Compensation Law, giving a remedy wholly unknown to the common law, under Judiciary Act Sept. 24, 1789, c. 20, § 9, 1 Stat. 76, * Decision rendered, Mar. 7, 1918. 169 N. Y. Supp. 645.

77, giving federal District Courts exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suitors the right of a common-law remedy, where the common law is competent to give it.

4. MARITIME CLAIM-INJURY TO EMPLOYEE-VESSEL IN INTRASTATE COMMERCE.

A ship need not be engaged in interstate or foreign commerce, to make a contract of employment relative thereto maritime, as regards jurisdiction of admiralty over a claim for injury to the employee, to the exclusion of proceeding under the Workmen's Compensation Law.

John M. Kellogg, P. J., and Cochrane, J., dissenting in part.

Appeals from State Industrial Commission.

Claims under the Workmen's Compensation Law, by Annie Sullivan, for herself and child, for death of Jeremiah Sullivan, against the Hudson Navigation Company, employer and self-insurer; by Emily Anderson. for herself and child, for death of Bernard Anderson, against C. W. Chadwick & Co., employer, and Massachusetts Bonding & Insurance Company, insurance carrier; by Michael J. Coakley, for himself, against the Kirkhan Company, employer, and United States Fidelity & Guaranty Company, insurance carrier; by Margaret Doey, for herself and children, for death of Patrick Doey. against the Clarence P. Howland Company, Incorporated, employer, and the Massachusetts Bonding & Insurance Company, insurance carrier; by Louis Anderson against the Johnson Lighterage Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurance carrier; by Pietro Tacoletti against the McQuade Stevedoring Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurance carrier; by Grace Keator and another, for death of Alexander Keator, against the Rock Plaster Manufacturing Company. employer, and the Employers' Liability Assurance Corporation, Limited, insurance carrier; and by Margaret Belknap and her children, for death of Chauncey Belknap against the Central Hudson Steamboat Company, employer. and the Travelers' Insurance Company, insurance carrier. In the cases, other than the last, in which the claimants Belknap appeal from finding and disallowance of award, the employers and insurance carriers appeal from an award, or from an order or decision denying their application to vacate and set aside award, or re-open proceeding for that purpose, and directing continuance of payments under award. Determination in Belknap Case affirmed; awards and orders in other cases reversed.

Argued before JOHN M. KELLOGG, P. J.. and LYON, WOODWARD, COCHRANE, and HENRY T. KELLOGG, JJ.

In Sullivan Case:

Cleland R. Neal and Joseph F. Murray, both of New York City, for appellant.

Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City, Counsel to Commission (E. C. Aiken, Deputy Atty. Gen., of counse!), for respondent.

In Emily Anderson and Doey Cases:

Nellis & Nellis. of Albany (Merwyn H. Nellis, of Albany, of counsel), for appellants.

Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City, Counsel to Commission (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondents.

In Coakley Case:

William Dike Reed, of New York City (M. Linn Bruce of New York City, of counsel), for appellants.

Merton E. Lewis, Atty. Gen., and Robert W. Bonynge. of New York City, Counsel to Commission (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent

In Louis Anderson, Tacoletti, and Keator Cases:

Bertrand L. Pettigrew, of New York City, for Appellants.

Merton E. Lewis, Atty. Gen.. and Robert W. Bonynge, of New York City, Counsel to Commission (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

In Belknap Case:

J. Harold McCord, of Newburgh, for appellants.

Merton E. Lewis. Atty. Gen., and Robert W. Bonynge. of New York City, Counsel to Commission (E. C. Aiken, Deputy Atty. Gen., of counsel), for the Commission.

Amos H. Stephens, of New York City (E. Clyde Sherwood, of New York City, of counsel), for respondents.

WOODWARD, J. All of the above cases involve the question of the jurisdiction of the State Industrial Commission to make the awards in question, and some of them involve the problem of estoppel or waiver on the part of the insurance carriers. It is contended that the jurisdictional question involved is close, and it has been thought proper to dispose of them all together, that all of the matters may be presented upon a single determination.

In Matter of Belknap (No. 34) the State Industrial Commission has refused an award in a case which comes within the letter of the statute, on the ground that the accident occurred on board a steamboat plying the waters of the Hudson river, a navigable steam, and that the case, therefore, fell within the exclusive jurisdiction of admiralty. No serious question is raised that the appellant is entitled to a reversal, unless the conclusion is reached that the Commission is correct as to the question of jurisdiction, so that this case may be passed for the present, as it must follow the disposition of the underlying question in all the other cases.

In Matter of Sullivan v. Hudson Navigation Company (No. 26), and Matter of Anderson v. C. W. Chadwick & Co. (No. 39), there was an accident upon a steamboat upon navigable waters, as in Matter of Belknap, supra, and in the Sullivan Case the Commission, after suspending action, subsequently reinstated an award to the claimant upon the theory that, as the matter was before the Commission with the consent of the insurance carriers, the original award might be sustained, on the ground that the question of jurisdiction was not raised in the proceeding, and therefore was to be deemed waived. Substantially the same situation prevails in the Anderson Case (No. 39).

[1] Assuming for the present that the accidents which occurred on shipboard on navigable waters were within the exclusive

Vol. I-Comp. 71.