present evidence of such non-compliance with the Labor Law to the municipal board having charge of such work. During all of this investigation the contractor has no opportunity for a hearing except through the courtesy of the Commissioner of Labor, and he cannot of necessity be divested of his property rights by a proceeding of which he might never hear until the result was announced.

We, therefore, conclude that the functions of the Commissioner of Labor here are advisory to the contracting municipality and that the contractor is not concluded by the result of the examination of the Commissioner of Labor. The rights of the parties here are not finally determined by the action of the Commissioner of Labor, and hence under the plain reading of subdivision 1 of section 2122 of the Code of Civil Procedure the writ of certiorari will not lie, as no provision is made in the Labor Law for a review by certiorari.

Keystone

It follows that the order appealed from should be reversed, the writ quashed and stay vacated, with costs and disbursements to the Commissioner of Labor. Construction Co. v. Williams, 152 App. Div. 575.

Strike Against Non-Union Material.

In a recent decision, the Supreme Court defines the power of union members to refuse to work on non-union material. Members of the Brotherhood of Carpenters and Joiners were engaged to work upon a building, a part of the trim and woodwork of which was being furnished by the plaintiff, an employer of non-union labor. One Rice, an agent of the Brotherhood, went to the building in question after an injunction had been served upon him and the union. members involved enjoining each and all of them "from conspiring, combining or acting in concert in any manner to injure or interfere with the good will, trade or business of the plaintiff's copartnership, for the purpose of coercing plaintiffs to employ union labor," and induced the men to cease work. A motion was made to punish Rice for contempt in having violated the injunction, but this was denied.

The interpretation of the court is as follows:

If these carpenters to whom Rice spoke voluntarily left their work without any compulsion from Rice or his organization there was nothing wrongful in his acts. The courts cannot compel men to work, and they can leave for any reason they see fit, or without reason; and if it be that the carpenters in this case desired to comply with the rules and regulations of their brotherhood there is no law that can prevent them or could prevent Rice from informing them that the trim was non-union material. The injunction quoted from does not restrain such deeds, as the act prohibited must be under some compelling or directing by-law, rule or regulation of the union. This could not include the giving of information to workmen as to the nature of the material they were at work upon, leaving to them the voluntary determination to stay or leave, as they saw fit. No injunction could keep them at work, therefore their reason for leaving is immaterial as long as it is voluntary. What John Rice said to those men when they threw down their tools and left is not stated in the moving papers, and it is left to hearsay statements to be inferred that he told them they would be

fined, while answering affidavits of the men themselves state that they left the work voluntarily under no threats as soon as they knew the material was non-union. The defendant Rice swears that he made no threats. Under these circumstances I would find as a matter of fact that the injunction order had not been violated by the defendants proceeded against.

In further discussing the question of the right of the agent to resort to threats of expulsion from the union the court said:

But assuming that the contention of the plaintiffs is correct and that John Rice did tell his men that the material upon which they were working was non-union material, that they had agreed upon entering the brotherhood not to work upon non-union material, and that they would have to comply with this rule of the union or be fined or expelled, would this be a violation of the injunction order?

The whole question turns

upon the purpose for which the act is done. If it be for the purpose of injuring the plaintiff's business or its good will it is illegal and within the terms of the injunction; if it be done for the purpose of legitimately advancing the interests of the brotherhood and of procuring employment for their fellow members who work in mills, I can see nothing illegal in it, and the purpose is not within the terms of the injunction order.

It is certainly legal for a body of men to agree among themselves that they will not work under certain conditions or upon certain kinds of material. As men cannot be compelled to work at all, they may place any conditions they please upon their employment. They can, for instance, agree among themselves that they will not work upon carpenter trim which has not been made by their fellow members. This is a lawful means by which they place in competition in the markets the labor of their fellow mill workers or the product of such a mill.

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If it be legal to form such a union with such a purpose and such agreements, it certainly could not be illegal to expel a member because he refused to abide by the rules and agreements of the union. Such is the basic principle of every religious, political and social organization; men cannot be compelled to join them, neither can the association be compelled to keep them after they refuse to abide by its reasonable rules and regulations. If these carpenters in question have legally agreed with their 200,000 fellow members that they will advance the interests of the 40.000 working in mills or others who desire to work in mills by refusing to handle trim not made by such men, I fail to see anything contrary to law in giving force and effect to this agreement by informing members that the material they are about to handle has not been made in mills employing their fellow associates; that the rules of their order prohibit their handling it, and that if they do they will be expelled from the order or fined in accordance with its rules. Bossert v. United Brotherhood of Carpenters and

Joiners, 77 Misc. 592.

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Expulsion of Union Member.

A member of a national plumbers' association had been expelled from his union without being accorded a fair trial. On the ground that "membership in the organization is of great advantage, if not essential, to the man seeking employment in the trade," the Supreme Court held that such expulsion must be regarded as illegal and that

the expelled member may seek redress through the civil courts. In voicing this opinion Justice Kelly said in part:

While the courts will not interfere in the internal management of these voluntary associations, still every member has the right to insist that he be accorded the rights and privileges guaranteed to him by the constitution and laws, and, if these are disregarded, to apply to the courts for redress. With the far-reaching powers granted to the organization over the individual members, for the common welfare, arise certain duties and obligations on its part. One of the most important rights possessed by the individual member in return for his allegiance to the union is the right to a fair trial before he can be deprived of membership. The constitution and laws secure him this right, and its enforcement is of supreme importance to the individual member and to the organization as a whole. Schouten v. Alpine, 77 Misc. 19.

Employers' Liability.

UNDER LAW FOR GUARDING OF MACHINERY (§ 81 OF LABOR Law).

Assumption of Risk When Guards are Absent. A notable decision by the Court of Appeals was recently handed down in which the question of assumption by workmen of risks arising from absence of the machine guards required by the Labor Law was considered. The decision is notable both because it tends to greatly strengthen the safety law by virtually precluding assumption by workers of risks arising from violation, and because it reverses the position of the court held previously in the well-known Knisley v. Pratt case. The opinion by Chief Justice Cullen is as follows:

I think the order of the Appellate Division reversing the judgment of nonsuit at Trial Term and granting a new trial should be affirmed. It is conceded that the defendants violated the statute of this State which enacts that all setscrews shall be guarded and that as a result of that violation of law the plaintiff was injured. The defendants seek to be relieved from the consequences of their wrongdoing on the claim that the plaintiff assumed the risk of their illegal act because he saw and knew of the existence of the unguarded setscrew. My personal opinion on this subject is the same as that expressed by me in the former General Term of the Supreme Court (Simpson v. N. Y. Rubber Co., 80 Hun, 415), that public policy precludes an employee from assuming the risk created by a violation of the statute or waiving liability of the master for injuries caused thereby. In the case of Knisley v. Pratt (148 N. Y. 372) this court took a different view of the law and, if the authority of that case remained in full force, I should feel constrained to subordinate my own convictions to that decision, though I may say in passing that subsequent to the decision of the Simpson and Knisley cases, the Federal Court of Appeals in an elaborate opinion by the present president of the United States held the same doctrine as that of the Simpson case — that risks occasioned by the failure of the employer to supply statutory safeguards were not assumed by the employee though he had knowledge of such failure. (Narramore v. Cleveland, C., C. and St. L. Ry. Co., 96 Fed. Rep. 298.) The decision in the Knisley case was a reversal of the judgment of the former General Term of the Supreme Court where, in an opinion written by Judge Haight, now a judge of this court, it was said: That the risks of a service which a servant assumes in entering the employ

ment of a master are those only which occur after the due performance by the employer of those duties which the law enjoins upon him." (75 Hun, 327.) Having sat below he did not participate in the decision of the Knisley case when it was before this court and Judge VANN dissented from the decision. The doctrine of the Knisley case has, however, been largely qualified, if not virtually overruled, by the subsequent decision of this court in Johnston v. Fargo (184 N. Y. 379), where we held that an agreement between the employee and employer relieving the employer from liability for all personal injuries to the employee that might result from the negligence of the employer was void as against public policy. If an express agreement could not relieve the master in the case cited, it does not seem clear how by a merely implied contract he can be relieved from the results of a direct violation of the statute.

Moreover, in this case the assumption of risk was a fair question of fact for the jury. The plaintiff knew that the setscrew was unguarded and that if his person or clothing came in contact with it he might be injured, but it does not follow that he necessarily knew of the probability of the sawdust or material in which he was standing yielding to such an extent as to bring his person or clothing into contact with the setscrew. To establish the defense of assumption of risk the burden of proof rests on the defendant (Dowd v. N. Y., Ontario & W. Ry. Co., 170 N. Y. 459), and though the defect be apparent, if it may require judgment not possessed by the ordinary observer or servant to realize the hazard caused thereby, the risk is not assumed. (Davidson v. Cornell, 132 N. Y. 228; Welle v. Celluloid Co., 175 id. 401.) The plaintiff, without any previous experience in his work, was injured within four days after his employment. The statute which the defendants violated was enacted for the express purpose of safeguarding the persons of employees. Where an employer deliberately fails to comply with the statute the courts should be loath, except in a very clear case, to hold that the employee assumes the risk of his master's violation of the law. Otherwise the beneficent results sought to be attained by the statute will fail to be realized. There seems, at the present day, an effort by constitutional amendment to render a master liable to his employee for injury received in his employment, though the master has been guilty of no fault whatever, and I feel that such effort is in no small measure due to the tendency evinced at times by the courts to relieve the master, though concededly at fault, from liability to his employee on the theory that the latter assumed the risk of the master's fault.

The order of the Appellate Division should be affirmed and judgment absolute rendered for the plaintiff on the stipulation, with costs in all courts. Fitzwater v. Warren, 206 N. Y. 355.

Unguarded Cog Wheels.

While in the employ of the defendant, the plaintiff, in adjusting a new machine, called the attention of his superiors to a pair of unguarded cogs, and was told that such cogs. would be properly guarded before the machine was started. Within a few minutes thereafter, while the plaintiff was at the back of the machine, the machine was started and the plaintiff, without giving further notice to the unguarded cogs, was caught between them and thereby injured. The Supreme Court allowed damages. Upon appeal by the defendant, the court held as follows;

The burden of proof rested on defendant to show either that it was impracticable to guard them, or that there was no reasonable ground to apprehend resulting danger if they were left unguarded. The evidence justifies the conclusion that

if there had been a few moments' delay in the starting of the machine, the guards would have been ready and could have been placed in position. The jury were justified, therefore, in concluding that defendant had failed to exercise reasonable care to furnish plaintiff with a safe machine, upon which, and a safe place at which, to do his work. After the assurance which had been given him, and in face of the emergency presenting itself, must it be said as matter of law that he failed to exercise reasonable care to ascertain existing defects because he went ahead in the performance of his duty unsuspicious of danger? We think not. We think that the jury were justified in finding, as they did find, that under the circumstances here disclosed his conduct on this occasion was that of the "ordinarily prudent man exercising reasonable care." The same argument applies to the question of plaintiff's freedom from contributory negligence. A servant is not bound at all times and under all circumstances to be mindful of dangers which surround him while engaged in the performance of his duty, even though he may well be aware of their existence. Shultis v. Waterbury Co., 152 App. Div. 416.

Unguarded Vats. Section 81 of the Labor Law also provides: "All vats * * * of every description shall be properly guarded." The defendant was, at the time of the injury, engaged in the manufacture of glycerine. After the process of distillation was completed, the pure glycerine was drawn from the still and the residue was run through a pipe at the bottom of the still into the uncovered vat beneath. The plaintiff was engaged in emptying the still in this At the time of the accident the plaintiff used his customary care in turning the valve in the pipe and permitted some of the impure material to run into the vat. There came a sudden splashing from the pipe and vat, causing severe burns to the plaintiff where the material came in contact with his body. During the previous eighteen months while the plaintiff was in the employ of the defendant, no such splashing had occurred and only small drops had come in contact with the body of the plaintiff, causing only slight burns.

manner.

One Calvert, a former foreman in the place, testified, however, that he (Calvert) had noticed such splashing at various times and had notified his superiors of the danger likely to result.

The Supreme Court "was of the opinion that the words' properly guarded,' used in the statute in relation to a vat, meant some barrier which would prevent an employee from accidentally falling into the vat, and did not apply to any precautionary device to prevent the contents of a still or vat from splashing over those at work near by." The higher court in reviewing this decision said in part:

We think that the words "properly guarded" were not used in this statute in such a restricted sense. Whatever guard was required by the statute was one proportionate to the reasonably expectable danger arising from the ordinary use of the machinery or receptacle in question. In this case, there could have been no probable danger of an employee accidentally falling into the vat. Whether any precautionary