foreman of the nature of his injury, but even then gave him no information of the time, place, or circumstances of the injury, nor that it was due to an accident, nor that he had sustained any accident while working for the employer, although the assistant foreman seems to have assumed that he received the hernia in the course of his employment. Much less did the claimant make any statement conveying the idea that he had a claim against the employer or that he intended his statement as the basis of a claim. It was the duty of the assistant foreman to report accidents to the employer, but he failed to do so in this instance, and no report was made. No notice as aforesaid has been given the employer, and the employer has not waived notice or recognized the accident in such a manner as to render unnecessary the formality of a notice.

Section 18 of the Workmen's Compensation Law provides explicitly that within ten days after disability a notice in writing, stating the time, place, nature, and cause of the injury, shall be given the employer, and that "if the employer be a corporation, then such notice may be given to any agent or office thereof upon whom legal process may be served, or any agent in charge of the business in the place where the injury occurred," and that the failure to give notice unless excused by the commission, either because it could not have given, or on the ground that the state fund, insurance company or employer, as the case may be, has not been prejudiced thereby, shall be a bar to any claim.

In Matter of Bloomfield vs. November, 219 N. Y. 374, 114 N. E. 805, it was held that, if the circumstances are such as to justify failure to serve the notice, the fact of such circumstances should be set forth by the commission as one of the facts constituting the basis of the award, and that the commission should make apparent the ground upon which it excuses the failure to serve notice. See, also, to the same effect, Matter of Prokopiak vs. Buffalo Gas Co., 176 App. Div. 128, 162 N. Y. Supp. 288.

[1] The only compliance by the commission with these requirements is the finding that "the employer was not prejudiced by such failure for the reason that his duly authorized agent thereto was aware of the accident within three or four days of disability," although this is coupled with the additional finding that such agent made no report to the employer. The reason assigned by the commission for its action is that under the section 21 of the act there is a presumption that the notice was sufficient. The presumption as to notice created by that section means the notice which the statute requires. It is the written notice of section 18 which is protected by the presumption of section 21. The presumption disappears stimultaneously with the establishment of the fact that the claimant has not complied with section 18. Then the burden properly falls on him to establish affirmatively that his failure has not been prejudical.

[2] The practice of the commission in this case completely nul

lifies the statutory requirement for written notice. The statute provides that written notice may be given to the employer in the case of a corporation, by delivering it to an agent possessing certain qualifications specified in the statute. But the commission has excused the failure to give the written notice and found that the employer and insurance carrier were not prejudiced by such failure solely because an oral notice was given to an agent. It is obvious beyond discussion that the effect of this is to hold that oral notice in all instances to an agent of a corporation is sufficient, and the statutory requirements as to a written notice to such agent is thereby destroyed. It does not help the case of claimant that it was the duty of the agent to report accidents to the employer. That was a matter between the agent and the employer. The agent owed no duty to the claimant to report the accident. The statute casts on the claimant the duty of giving notice, and provides what kind of notice it shall be, and specifically to whom it shall be given, and the plain inference therefrom is that the claimant cannot rely on a duty which his fellow servant or foreman owes, not to him, but to the employer. The claimant cannot excuse his own default by alleging the default of another to a person other than himself. If in the present case the information which the claimant gave the assistant foreman had been passed along by the latter to his superiors in such a way as to arrest the attention of the employer and excite it into activity in reference to the accident, or, in other words, if the purpose of the statutory notice had been accomplished, those facts, but not the oral notice, might have constituted grounds. for excusing the claimant's default.

The cases cited point out that the statutory notice should not be regarded a mere formality and dispensed with, unless the circumstances clearly indicate that no prejudice has resulted to the employer and insurance carrier. The statute confers benefits on the working man far beyond what theretofore existed. In the present case, for instance, so far as the facts are disclosed, the claimant would have no cause of action against the employer independently of this statute. One of the requirements of the statute is that employees shall notify the employer in the manner provided by the statute as a condition of having the benefits which it confers. The Legislature has seen fit to safeguard the rights of

of the accident. A very essential and important purpose of this notice to be given within a certain time setting forth the details notice is that the employer may have the benefit of an early investigation of the circumstances surrounding the alleged accident. Any tribunal assumes a heavy responsibility when it judicially determines that any investigation by the employer, if seasonably made, would have been fruitless. Of course, there are cases where the circumstances are so plain that such a decision may well be

a liberal application of the statute should be made in favor of claimants. Their path should not be beset with difficulties. But, on the other hand, before the money of an employer or insurance carrier is appropriated in payment of such claims, they should be given full and ample opportunity to investigate the claims and the circumstances of the accident. That is the reason why the statute with such particularity and in such detail makes minute provision in reference to the notice. The commission should be reasonably satisfied that the failure to give notice has not prejudiced those who must make compensation. As pointed out in the cases cited, the commission should find the facts from which the conclusion reasonably and logically follows that the employer or insurer has not been prejudiced. In this case certain facts have been found on which the failure to give notice has been excused, but such facts clearly do not justify the excuse.

The award should be reversed, and the matter remitted to the commission for further consideration. All concur.

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

HUDSPITH

VS.

PIERCE-ARROW MOTOR CAR CO.

IN RE ETNA LIFE INS. CO.*

WORKMEN'S COMPENSATION ACT-FILING CLAIM WITHIN ONE YEAR.

One injured January 10, 1916, who filed claim January 10, 1917, filed the same "within one year," within Workmen's Compensation Law § 28, under Laws 1910, c. 347, providing that the day from which "any specified period of time is reckoned shall be excluded."

Appeal from State Industrial Commission.

Proceedings under the Workmen's Compensation Act by Edward Hudspith to obtain compensation for personal injuries, opposed by the Pierce-Arrow Motor Car Company, the employer, and the employer and Insurance Company. Compensation was awarded, and the employer and insurance company appeal. Award affirmed.

Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ.

William H. Foster, of Syracuse, for Appellants.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of

counsel), for State Industrial Commission.

*Decision rendered, Nov. 14, 1917. 167 N. Y. Supp. 418.

COCHRANE, J.

The accident happened January 10, 1916. Section 28 of the Workmen's Compensation Law provides that the right to compensation shall be forever barred unless within one year after the injury a claim for compensatoin is filed with the commission. The claim in this case was not so filed until January 10, 1917.

The apellants contend that, in computing time reckoned by years, the day from which the time is reckoned must be included in the reckoning, and that the claim therefore was not filed within one year. So it was held in Aultman & Taylor Co. vs. Syme, 163 N. Y. 54, 57 N. E. 168, 79 Am. St. Rep. 565, and Benoit vs. New York Central & Hudson River R. C., 94 App. Div. 24, 87 N. Y. Supp. 951. Those decisions were based on the Statutory Construction Law (chapter 677, Laws of 1892, as amended by chapter 447, Laws of 1894) which provided in section 27 as follows, "The day from which any specified number of days, weeks or months of time is reckoned shall be excluded in making the reckoning," and made no reference to years. That provision of the statute became part of section 20 of the General Construction Law (Consol. Laws, c. 22). In the case of Aultman & Taylor Company vs. Syme, supra, the court said that, while the statute specifically declared that "the day from which any specified number of days, weeks or months * * is reckoned should be excluded in making the reckoning," no such provision was made in the statute for computing periods of years, and that under the principle, "Expressio unius est exclusio alterius," a computation of time reckoned by years should include the first day from which the time was reckoned instead of excluding the same, as the statute specifically required in the case of days, weeks or months. The court further remarked:

"Had the Legislature intended to apply that method to periods of years, it could have disposed of the whole subject in a single sentence by saying that the day from which any specified period of time is to be reckoned shall be excluded from the reckoning. The Legislature expressly acted on this suggestion and adopted almost the identical language of the court in chapter 347 of the Laws of 1910, by amending section 20 of the General Construction Law so as to substitute for the sentence, "The day from which any specified number of days, weeks or months of time is reckoned shall be excluded in making the reckoning," the following sentence: "The day from which any specified period of time is reckoned shall be excluded in making the reckoning." The rule therefore is now the same whether time be reckoned by days, weeks, months, or years. In any event, the day from which the reckoning is made must be excluded. It follows that the claim was filed with the commission within one year.

The award should be affirmed. All concur.

SUPREME COURT OF NEW YORK.

APPELI ATE DIVISION, THIRD DEPARTMENT,

GILBERT

VS.

DES LAURIERS COLUMN MOULD CO., INC., ET AL.*

1. WORKMEN'S COMPENSATION ACT-INJURIES OCCURRING IN FOREIGN STATE.

Where a person employed under a New York contract was injured while performing services for his employer away from the plant and in the state of New Jersey, his claim for compensation was under the provisions of the New York statute, rather than the statute of New Jersey.

2. WORKMÉN'S COMPENSATION ACT-ELECTION OF REMEDIES.

Where an injured person was induced to invoke the New Jersey statute, under which an award was made, and the insurer made some payments, he was not thereby deprived of his rights under the New York law; the insurer being credited with the amount paid.

Appeal from State Industrial Commission.

Proceedings under the Workmen's Compensation Act by James W. Gilbert to obtain compensation for personal injuries, opposed by the Des Lauriers Column Mould Company, Incorporated, employer, and the Etna Life Insurance Company, insurance carrier. Compensation was awarded by the Industrial Commission, and defendants appeal. Affirmed.

Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ.

James B. Henney, of New York City (William H. Foster, of Syracuse, of counsel, and T. Carlyle Jones, of New York City, on the brief). for Appellants.

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

ent.

WOODWARD, J.

[1, 2] We see no merits in this appeal. The claimant was employed under a New York contract. At the time of his injuries he was performing services for his employer away from the plant of such employer in the state of New Jersey. The claimant originally made application for compensation under the New Jersey statute, and the insurance carrier made some payments under the act. Subsequently the claim was made in this state and an award has been made, crediting the insurance carrier with the amount paid under the New Jersey proceeding. The claim that the New Jersey Commission, having accepted jurisdiction and administered upon this claim, deprived the Com* Decision rendered, Nov. 14, 1917. 167 N. Y. Supp. 274.