Statement as to Jurisdiction — James Stewart & Co. v. Sadrakula

- SUPREME COURT OF THE Tt) ITED STATES —

OCTOBER TERM, -

: \ .

r

7 ein ae enn De uy

No. 251.

JAMES'STEWART & CO., ING, !

ae fT sae Appellant, —

a 7 nwo .. US. eo oy

KATHERINE SADRAKULA, -as ADMINISTRATRIX OF THE

Goops, CHATTELS AND CREDITS Wuicn Were or NicHoas

. SaPRAKULA, Decr ASED.

* 9

APPEAL FROM THE SUPREME COURT OF THE STATE OF NEW°¥ORK..

*

STATEMENT AS TO JURISDICTION.

--

* Crarence BE. MEt.en,-

iy a 7 °

aes FrepertcKk MELLOoR,

° Counsel for Appellant. .

@ 0 INDRE.

Supsecr INvex.

Ae =o ; . Page

Statement as to jurisdiction ok eee “y

~ Statutory provision sustaining jurisdiction 1

Date of judgme nt and date of application me

ai Geer ate, . - : i

Statute of the State of “‘ew York, the validity Poe. ii

: of which is involved Pak a. 2

~ Natulre of case 4

- State of proceedings at which, aud 1 manner in

which, the Federal questions sought to be re-

viewed, were raised. in the Court-of First In- |

ostance and in the Appellate Courts and the way’:

in Ww ‘fich they were passed upon in those *

courts: ae

Grounds: upon “which it is aaleudua that the cere

questions involved are substantial —.... 10°)

Cases believed to sustain jur indictton os — . 14

Exhibit ‘“A’’—Opinion of the Appellate Division of

“the Supreme Court of the State of New York |. 16

‘ , ‘

| TaBLe or Cases Cirep.. ~

Arizona v. C ‘alifornia, 2983 U.S. 423 RES gs sh ee oe

- Arlington Hotel Co. v. Fant, 278 VU. S. 439. | 11

. Barrett v. Palme 2162 U.S. 399 =

* Chicago, Rock Is sland & Perit R.R. Co. “MeGlinn,

114 U. S. 542 10 |

Dahnke AK alker Covv. Bondurant, 257 U. S. 282 eas: f

Dickensdrv. Stiles, 246 U.S. 631 : ee ae

Hamburg-American ie nee Co. v. Grube, 196

U. S.cA07 ean Ene Lipane Spee

Home Insuranck€0. v. Die k, 281 U.S. 397... .. 15

McCulloch v. Maryland, 4 Wheat. 316 11

Murrayy. Joe Gerrick & Co: 291 U.S.315 0. 12, 13¢

‘Near v. State of Miunesota, 283 U.S. 697 705 tea ame

Oklahima City v. Sanders, 94°F. (2d) 323 12 ,

_—2931 | hee

an

Ward v. Krinsky, 20 9 UL S. 5085 part as 7” 15_ ‘

Act of Fe bru: ary 13, ape Chapter 299, Section 1; 43

ametiding Section 2 37 of the Judici Ay ee. Y

- Actoof tannary-3k 1928; - Chapter maa 2h

“Act of February I, 1928, 45 Stat. of (16 U. 8. e. “

“ Eabor Law of New York, cotton 241, sabaivinion 4

Book 86, Section 241 C3 3,44

New York € ivil Praetice Act, Sectiow 59 8 (1) ce i

Section a (3) x, ‘9.

Penal Law of New York, See. 1275; Consolidated ,

Laws of New York, Chapter 40, See. 1275) 11

United States ¢ ‘ade, Title 46, Sections 280, 341 and

il | ; INDEX oy ~ ae

7 7 care i be Page

I ple xy Fe l. Levering ¥. Leo, 112 N. » “Mise. R.

olo Pe &. aa ee

Sadrakula, ete. Vv. James Stewart &Co., lne., 254 WY. .

App. Div. S92, 279 N ¥. 686, 280 N, » 157, 280 N, : ¢

230 8, 6

“ ite d States National Bank v. Pamp,7 ITF. (2d) 9... 12.

Vilas v City of Merde, 220 Ue S. 34000 , ime | Soe

Western Union, Telegraph Co. v. Chiles e214 U.S.

2f4 > . a ae eke, 1U

o. oe: :

; 3

STATUTES CiteD.

Stat. 936, 937 CU. Sst'ode, Title 28, Section 344), Bs

amended by the Act-of April 26, thy Chapter 440;

45-Stat. 466 (28 U.S. C.A., 861a and 861b)

lo...

457): 12, Sites

Bakdwin's Cade of Ordinances of” ‘the City of New

York, Chap. 5, Sees: 10 and 190 11

x ‘ongressional Record, Vol. 62, ees » PP. 678, 1293,

1486 a oe

Consolidated Laws of New York, “cubipyer 13, See .

tion 130 oe - 4

Constitution of the United States, Article 1, Section

Ss, Clause 7° *

(Laws of 1921, Chapter 50, Seetion 241, as amended”

by Laws of 1922, Chapter 1 and Laws of 1930, Chap-

603; MeKinney’s Consolidated Laws of New York,

342 (30'Stat. 614, 44 Stat. 630, 631) 2 6,7

“a

s

CD

9

_. SUPREME: COURT OF THE UNITED STATES

OCTOBER TERM, 1939

ae 2

© - seas | & |

No, 251 .

JAMES STEWART & CO., INC., gas

Q 2% es on 5. . Appellant, —

—————

———

ores

_KATHERINE-SADRAKUL LA, ‘AS ADMINISTRATRIX OF, THE -

. “Hoops, C HATTELS AND CREDITS Wuicu Were OF NicHoLas: ©

.

Saprakv ay Deckasen. ; a 2

STATEMENT AS TO JURISDICTION ON APPEAL.

~ May it Please the Court: ° : ieee

The appellant, | in Support of the jurisdiction of tls Court

- to review the above-entitled cause on appeal, respectfully

represents :

A.

‘ ‘Statutory Provision Sustaining Jurisdiction.

- The Net of F ebruary 13, 1925, Chapter 229, Section 1: 43

— Stat. 936,:937 (U.S. Code, Title 28, Section 344), provides

- that Section-237 of the Judicial Code is ametided. to readin

part as followss> wg ee a

rm

at (a) A final judzment or decree in any suit in the

highest court of a State 1 in Ww hich a decision i in the suit

Cu

19

al

coule l be had, C5)

validity of a statute of any State, on the ground of its

being repugnant to the Constitution, * ‘* *, or laws

‘ofethe United States, and the decision is in favor of ‘its

validity, may be reviewed by the Supre me Court upen a

‘writ of errer. The writ shall have the same effect as if

the judgment or decree had been rendered or passed in

a court of the United ‘States. The Supreme Court may.

reverse, modify, or’affirm the judgment. or decree of

such State cotirt; and may, imits discretion’ award exe-

cution or remand:the Cause to the egurt from which it

Was removed by’ the Write”’

vi

Act of J; inary 3 , 1938, Chanter ‘A4; 45 Stat. o4, as :

" amended by Act of ° Apiil ‘26,1928, Chapter 440; 45 Stat. 466

(28 J. S.C. A, Sections SGI - A and’ 861- B), Trav ides :

where is drawn i in question the

ws

“That the writ of error in cases, civil’ ‘and ecriminal,-is *

abolished, “All relief which héretofore could be obtained

by writ of error shall hereatter be obtainable by appeal.

‘Section 2. The statutes regulating the right toa

writ of errors defining the. relief which may beshad *

thereonand préseribing the mode of exercising that.’

right and of invoking such relief, including the pro- ,

Visions relating to costs,.supersedeas; and mandate,-

shall De applicable to the appeal which the preceding

ection substitutes for a writ of error,

, . a ; :

Date of Judgment and Daté of Application.for Appeal.

The judgnient, of the Supreme Court of New York sought

tothe reviewed was ente red on the 13th day of April, 1939,

and the’ SppHen Hen: for: appe ‘al is presented this 22nd day of

June, 130, 7

(.

Statute of the State of New York, the Validity 9 of Which is

Involved.

The statute, the ‘validity of which is involved, is Section

241, subdivision 4 of an act, known as the Labor Law, which

as

age

constitutes Chapter 31-of the Consolidated Laws of | New.

York (Laws of 1921, Chapter 50, Sectiow 247, as amended ~—

by Laws of 1922, Chaptef t, and-Laws of 199%, Chapter 603;

MeKixney’ s Consolidated: Laws - of New bie Book 30,

- Section 241). fr

read:

Said: sinha, as it was in effect on oft after April 19, 1930,

ye

“See, ou, pia, a“ EMPLOYEES ON’ “Burbine

a ONSTRUCTION OR DemMoLIf¥oN Work, Inciupine Excava-

zion W ORK IN CoNNECTION THEREWITH, All contractors

‘and owners, when constructing or demolishing | build-

ings’shall ¢ ‘comply with the: following requirements :

1. 1f the floors ae to be arched. Between the beams

thereof, or if the floérs or filling in between the floors

are of firepridof material, the flooring or filling in shall

be completéd as the building progresses.

2. If Me floors are not to be; filled in between the.

‘DeamsaAvith brick or other fireproof material, the under-

flooring shali be laid on each story as the building

progrésses.

3. If double floors are ol to be used, the floor two

stories immediately below. the story where the work is

‘Being performed shall be.kept planked over.

‘4. If.the floor beams are of iron or steel, the entire e

tier of iren or steel beams on which ‘the structural iron

or steel work - ‘is being ‘rected shall be. thoroughly

planked over. to not-less than six feet» beyond such

beams, except spaces seasonably ‘required for proper

construcfion of the iron or. steel work, for raising or

lowering of material or for stairways and ‘elevator

weg designated by the plans and specifientions

. If elevators, elevating. machines or hod-hoisting

iieeasti are used in the course of constfuction, for

net

a]

the: purpose of lifting materials, the shafts 6r openings

in each floor shall be inclosed or, fenced. in on all sides -

bya barrier of suitable height, except on. two sides

Ww ‘hich may be used for taking off and putting on mate--

rials, and those sides shall be guarded by ap adjustable

barrier not less than three nor more-than four feet from

: 2

4

-

Nw

4 ; L a ‘e

the flook anid not less than two feet from the edges of ;

- ‘. shafts or openings. : >

Tia building in course’ of construction: is five

ee lessor more hireh, no hanber or timber for-such con-—

stryction shall be hotsted or- lifted on the outside ot such. ;

Dbuilding.®” eg ° oat

eo Se

, Nature of Case.

(Herein the appe ‘il nt.W iL KeTeferred to as “defendant”

afd appellee’s intestateas plaintiff”, )-

: This. isa civil action wherein appellee ‘sued defendant,

under the New York equivalent | of Lord Campbell's Act

(Consolidated Laws of New York, Chapter 13, ‘Section 130)

fo recover dama&es for the death of plaintiff.

The accident. oce urred’ ou October 24, -1935,” ike ‘the Post.

OMe and Pecgral Office Building in New York City which

defendant, as general contractor, was erecting pursuant: to

a- contract with the Treasury i coupon of the United

States, P rocurement Division (R:' 5, 18, 1107 Defendant’ Ss.

Hghibit X for Identification, R. 121; pa! R. 111), on’,

land which the Unitgd States: had purchased for that pur-

pose in 1951. with the consent of the New Yerk Legislature

(R.17, 18). .

Plaintiff was “employed as forenian rigger by aiteds

Hoisting Co. and was in charge of installing certain concrete

mixing arid conveying equipment, including a bucket -hoist,

«which, his employer’ had contracted ta furnish and install

for defendant's use during the construction of the building

(R.A, 24, 25; Plaintiff's Exhibit 3, R. 118, admitted, 'R. 54).

The inst: pie thereof was begun the day before the

- nevident (R.27). At that time. the erection of the structural

‘stecl for that se ction of the buildingshad -been ee

Pan references are to pages of the printed ‘Case’ on Appeal in the

Court of Appeals, whieh will be includ ed in the certified record gg ate

‘by the (Clerk of the Supreme Court of the State of New York, Kings

County, anid fied with the ¢ ‘lerk of this Court. . Te) :

\

ty : a *

(R. 113, 114) but no floors had been ‘filled in’’, except at

the first tier of steel (the.one from which plaintiff fell).

There, the floor “forms”? had been placed and conerete:

\ ponred in all but the..two adjacent **bays*’, in which the

hoisting equipment was to be placed. (R. 43, 61, 67). Ad-

mittedly, those ““bays*’ ‘were not “nlanked over”? but the

“hoist could only be installed in ‘‘open steel’* (R. 39).

While statiding on-a plank which w as lying acrosyone of

a those “bavs’’, to measure one of the two vertieal *‘euide-

_ rails’? which he had erected to carry the bucket-hoist, plain-

. tif fell to’ the sround heneath,, receiving the injuries from

: which he: died (R. 61, 62, 65, mio, - .

~~ The’shaftway for the hoist oceupied only a maak part of

the “*bay’’ and its location therein, which “depended upon

.the precise. position of other parts ‘of: the equipment, -

. beet deternijned by plaintiff, asa part of his wark (R.:

» $8), 45, 46).

; . Appe sllee charged defendant with liability. for plaintiff's

death solely upon the ground that the New York Labor. |

law, Section 241 (+), required it to keep the beams, at the

place where plaintiff fell, ‘*thoroughly planked over?’ and °

that — was caused by defendant? s failure to do so’ :

(R. 112, folio 336): All other specifications of iegligence

Were expressly pater (R.-96, 97, 98, 110, ci

In suppert of its-defense that the Labor Liaw did net

a apply t@the construction of that building, defendant offered

* in evidence (R. 110, 111) its contract with the United States,

~ dated “November 9, 1954, particularly the stipulations.

therein relative to the applicability af, State and municipal

— building regulations to the work therein provided for (De-

féndant’ s Exhibit A for ‘Identification, R. 121). Tt Was _

‘there provided that municipal ordinances *‘do not apply

inside of the lot lines*’ and that “State or Municipz! ! Build- .

. ing Rewulations do not apply to work inside the Gov ern-

és ment’ s jot lines’? AR 121, folios 362, 363). Thisswas ex-

. ow

-

, .

e:.

cluded on appellee’ s ‘chindiie that it was “not ‘binding i in.

this matter’? to which ruling defendant duly exteptes (R.

110, 111).

At the conclusion of the evidence, defendant moved for =

the direction of a verdict in its favor ‘‘on the’ specific

* ground" that the Labor Law ‘‘is not applicable to the place 3

of the accident and that application thereof to the place of .

the accident is.in_violation of Article 1,.Section 8 of the

United States ¢ agers ’ and duly excepted to the denial

thereof (R. 112, 113, folios 336-337). The jury was then : 3

waived by pie a the parties and the,case was submitted

to the Court for. decision (R. 113). Thé Court: found, as

a fact, that ‘“‘the proximate cause -of the accidert- which ’

occasioned decedent’ s death was thé failure of the defend-

sant to thoroughly: . the beams as’required by Sec @

, of the Labor Law”’ and directed. q

“tion 241, subdivision ,

judgment in favor of the appellee. (Mgmorandum Decision

of Hon. Harry K. Lewis, Justice, appended hereto; R. 122),

upon which judgm “nt- was duly entered in the office of the

Clerk of the Supfeme Court, Kings County, on. Nov ember

24,1937 (R. 15),

Defendant d ly appealed to the Appellate Divi ision of the ey

Supreme Court of the State'of New York, Second Judicial

Department,

in its brief amd argument (no assignment of errors being

mee ° = .

provided fo

applied and

‘tion 8 of the Constitution of the United States and to the

Provisions of U.S. Code, Title 40, Seetions 285, 341 1 and 342 .. 3

(30 Stat. 614; 44-Stat. 630, 631) and that. the deni: al of: its

motion for t ¢ direction of a verdict i in its faver’ was, there:

fore, reversible error, Nevertheless, said Appellate Divi-

sion unanimously Sustained the validity of that applicsition.

of said sfatute and’ affirmed said judgment (R. 127 ~ SR;

SB

rom that judgment and, upon that appeal. .

in. New York. practice ) contended that, as

nforeed in this case, the New York Labor Law.. 4

Section 241, subdivision 4, was repugnant to Article 1, Sec. - 7

;

7

fs Fae ca

a

r 29), holding that the statute, having been in effect. “before

the act of cession’ ‘and there having been ‘‘no- action by Con-

gress. displacing * /* * (it) in Fespect of this Federal

reservation”, it continued to apply. therein (R. 131; Memo-

randum - Decision of Appellate Division, ‘Second® Depart-

kula, as admx., ete. v7 James Stewart & Co., Ine., es N. Y.

bio Div. 892). ae

Defendant then applied: to ‘the ( ‘ourt of “Appeals, under

Yew York C ivil’ Practice Act, Section 588 (5), for permis-

Practice Act, Section 588 (1), hsm the ground that said.

judgment was ‘entered upon’? a deeision ‘* which finally”

determines an actiqn ©" * 2 w herein i is directly involved

the construction’ of the ¢ ‘onstitution -* * * of the U nited

ficially reported, 279 N. Y. 686). o P

. Inits brief and upoti the argunent of tliat’ appeal in the

Court of Appeals, defendant: ‘claimed tliat said Labor Law,

when applied to the. place. where pl: Lintiff sustained his in

jury, was invalid, i in-that it was repugnant to Artic 11, See-

tion < of the Constitution of the United States and. contrary

United States (Defendants Exhibit A for Identification,

|. R.121; exeluded, R. 111), made pursuant. to. United pres ..

| eer ‘ode, Title 40, Sections 2 85, 341, 342. (30 Stat. 6147 44 Sita

620; 631).. The: Court of Appeals unanimously, aceaa

opinion, affirmed the said judgment against defendant anil

decided in favor of the x -alidity of ‘said Labor Law when sO

applied, (Officially reported, Sadrakula, | as adm. ele., )

James S'ruart & Co.. Inc. , 280) IN. ¥. ( Bar #1) 157 ae

ent

2 All empliasis contained “i in quotation: herein,- is ours.

ment, appended hereto; R. 131; officially reported, Sadra-*

“States, . * *.* The Court of Appeals denied defendant’s |

-motion for permission to appeal ‘‘on the ground that ati.

appeal hag been properly® taken as of fight” aaa ; of- #

~ to fhe express stipulations of defendant's contract with the

sion to appeal frony said jadgment of «ffirmance and, also,

appealed to said court,,as of right, under New York Civil >

8

On Gefendant’s application, the Court ‘of Appeals there-

after amended its Remittitur-by adding thereto the follow-

ing pened reported, Sadrakula v. ‘Stewart, 280 N.Y.

( Adv. 236 Mem.) : dig .

‘ A question under the Federal C wattle Was .pres!

sented and necessarily passed upon*hy this Court. The

‘appellant contended that Section 241, sub-division 4.of .

the Labor Law of the State of New York (Consolidated

‘Laws of New York, Chapter. 31; Section 241, -sub-di-

_ vision +) insofar as the said law is consfrued to apply:

to the construction and erection of a post office building.

pursuant to a-céntraect with the Treasury Départment

ef the United States, upon land within the: exterior

houndaries of the State of New, York but which Ls within -

the exelusive jurisdiction of the United States under

Article 1; Section 8, Clause 17 of the Constitution of the

-United States, is repugnant to the Constitution and laws

of the United States in that it offends A@ticle 1, Section

8 of the Constitution of the United States and Title 40

. ULS. Code, Sections 285,341 and 342 (30 U. S. Stat. Ol4;

44 U.S. Stat. 680, 631) and is invalid when so applied.

' This Court held that the aforesaid Labor Law of the -

State of. New York is valid and not repugnant to any

proyision of the (" onstitution of the United States.’

No opinions: were written in any of the State courts, eX-

cept tie memorandum decisions of fhe. Supreme Coure

Kings Coynty, (lon. Harry E. Lewis, Justice), and of the

Appe Hate Division, See ond. Department, both of which are

et hereto (pe. 16- 17, post).. sy ae

State of proceedings at which, and manner in which, the

Federal questions sought to be reviewed, were raised in the

Court of First Instance and.in the Appellate Courts and the

way in which they were passed upon in those courts.

The Federal questions sought to.be reviewed were raised

in tye court of first instance by defendant’s motion to dis:

A

: |

; ‘ - =

~~

miss the complaint, at the close of plaintiff's s case (R. 98, 99,

folios 294, 395, 297) which was renewed at the close of the

entire case (R. 112) folios 334, 335) ; and by its motion for

the direction of a verdict in its favor (R. 112, 113, folios 336,

Zh Those motions were denied. by that Court, to which .

rulings defendant (appellant) duly excepted: (R. 99, folio

207; R112, folio 835; R.. 113, folio 337). : :

In the Appellate. courts they were raised by -appellant’s

appeal from the final judgment against it, and urged in the

briefs and oral arguments. Thé Appellate Division, See-

ond Department, passed upon those questions in its Memo-

— Decision (R. 131; Officially reported, Sadrakula,

fv dames Stewart & Co., Lue., 254 } App. Div. 892)

= alone the judgment of the Supreme Court, Kings

County (R. 127, 128) and the Court of Appeals affirmed the

said) judgment of aflirmance of said Appellate® aes

Second Department (Officially: ‘reported, | Sadrakula, cle,

Jamis Stewart & Co.; Inc, 280 N.Y. (Adv. #1) 157 nem. :

That those questions had been propertly raised and neces-

sarily decided was ‘determined by the Court.of Appeals upon —

‘its, dental of appellant’ s motian for leave to appeal to that

court, under New York Civil Practice Act, Section DSS (5).

‘Said court them held that appellant’ s appeal, as of right,

under Civil Practice Act, Section 588 (1), was properly

tuken. Under that statute, an appeal to the Court of Ap-

peais from a judgment of affirmance by -the Appellate Di-

Vis ion, entered upon a wnqnimous decision, is allowed; as of

_right, onlyewhen such judgment is entered upon a decision,

; finally determining an action, ‘wherein is directly involve

the construction of the constitution of the state gr of the

United Sues.” FY :

ee

o

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o

—

10 as en

- Grounds Upon Which it is Contended that the » Questions

Involved Are Substantial. :

The precise question presented in the instant case is

wh@ther the State Labor Law which w as in effect wlien j Jur is-

diction of the enclave was ceded to the U nited States, con-

- tinued in effect thereafter, so as.to render it applicable toa.

post office, under construction therein for the United States,

pursuant tora contract in which the sovereign specified that

‘State or Municipal Building Regulations d6 not apply te

Work inside the Government’s lot lines’? (Defendant's Ey. -

hibit A for Identification, R. 121; exeluded, R. 110, 111).

The decisions of thé State courts, do not rest upon the-

ground that exclusive Jurisdiction of the enclave had not, in_

fact, been eeded hefore the accident. and before the execu

_ tion of appellant’ s contract with the United States, but ate.

placed entirely upon the ground that the State statute con-

tinued to apply after such cession, because the Congress

“had not ‘displaced’? it (Decision of Appellate Division.

“appended hereto; R, 131; Officially reported, Sadrakula, as

adm, ete, Vv, James Stewart f Co., Inc,, 254 X.Y. App. Div.

SOD >. Fe y : ;

That laws, termed ‘‘nyanicipal’', which regulate the 1 ‘ights

of the inhabitants of ifch enclave in their relatiotis with

one another, continue in force after sueh cession, on the

theory that they have been adoph d by tife new sovereign,

has heen decided by this Court.. aioe

( ‘hicage, Rok Island .d Pac ifie aR. fe. Coo ve MeGhnn,

114-U.'S. 542, 546

if * * * : . - . : " > at 7 . .

a 5 sans Wier e ope ~ eae 0 ep ee mere: mes,’ Pe ae Lee ee ees ee fea mee PCR

seri eral abi ante aD ate Cotas sO eee a NS aa ok pS Y's At ct

Barrett v. Palmer, 162 U.S. 399; ‘

Hantburg-American Steamship Coun. GQrute, 196 UTS.

407;

Western Uniog Tele oan Co. v. Chiles, 214 U. S

274;

0S ee ee Sea aE Se

rae ef

Vilas v. City of Manila, 220 U. S. 345;.

Arlington Hotel Co. v. Fant, 278 U,S. 439.

The statute involved eran! is = a law of that character.

Tt regulates the manner and order in which certain parts

of the work: must be done i in the construction of buildings

“and renders failure to comply w ‘ith those requirements a

‘criminal offense (Penal Law, See: 1275; Consolidated. Laws

of gio se pate 40, See. 1275). In New York City

its etifarcement is entrusted to the Superintendent of Build-

ines of that city, who is also charged with the enforcement.

ot the Building Code of the City of New York. That offi-

vial is authorized to enter upon any premises w herein such

Work is’ being performed and is empowered; if he deems it

“hecessary, to order the cessation of all work pending com- *

pliance with-its requirement. Labor Law, Sec. 242; Bald-

win's Code of Orflinances of the C ity of New York, Chap.

o: Sees. 10 and 190; People Ea rel. a v. Leo, 112

N.Y. Mise. R. 325

“As applied in a. ‘instant case, that. Anta dperated to

Impose a burden upon the work which Vics acne was per- e

forming for the United States. ee

The establishment and conduct of the post office system

-and the construction of buildings ther efor is an exclusive

function.of the Federal Government. ( ‘onstitution of the

United States, Art. 1, See. 8, Clause 7. The construction

‘of the building in the instant case was therefore an exclusive

function of the’ Federal Government, and the State and its

officers were power less to compel compliance with that State

‘tatute, not merely because it was beyond their territorial

jurisdiction, butt bee ‘ause enforcement thereof would con-

‘titute an interference with the exercise by the Federal Gov-

ernment of its functions.

Arizona v. Califgrnia, 283 U. 8. 423, 451;

McCulloch v. Maryland, 4 Wheat. 316, 436;

a

.

.

5 .

a

ff. =

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\

323; ;

United States National Bank v. ts (C. C. A.), 77 F.

(2d) > ae i . .

The argument that imposition of civil liability upon ap-

pellant did not interfere with the performance of this Fed-

eral funetion begs the question. Compliance with the

require ments of the statute impesed a direct burden.thereon

and civil liability results soleh-tron ifon- -compliance.

That the United States could adopt those 1 requirements as

‘its own may not® be questioned. It is, however, equally

clear that 7f alone had the right to determine the advisability

of doing so. ‘The ultimate question then is: Did-it intend

todo'so? + . me

Its only expression on that subjecteis found in its con-

tract. with appellant wherein it is expressly provided ‘hat *

2State or Municipal Building Regulations do not apply to,

work inside the%overnment's lot lines”? (Defendant's Ex-.

hibit A for Identification, R. 11; excluded, R. 111).

The decision of the Scate courts in the instant case pre-

sents the incongruous situation that a state sti itute ‘is effec-

tive to impose civil Tabihty for non compliance with its

terms but ineffective to compel eee therewith. (Cf.

‘Murray v. Foe Gerrick& Co..291U. a 319),

The question here presented has never a n determined

by this Court. In fact, we kiow of no case in Which the ap-

plicability of a statute of this character te work betng done

for the Federal Government, in territory within its exclusive

jurisdiction, has been considered, except Oklahoma City v.

Nanders, supra (OFF, (2d) 323). In-that case, however, the

= question of civil liability’ for non-compliance was not.

presented,

Whether Act of Waedary 1, 1928, 45 Stat. 54 (16 T 1S

CAG See. 457), renders the State Labor Law applicable in

Oklahoma Cit y *. gideee (c. C. AL), 94 -F. (2d)

: : sigs . , six oki : OR i i aires a SRE Stone Pos gee

> : t : Pees ‘ Vues tet Se fa Fontes Sat Be a? Ineo T one e vF: me Sec i tec ; m

I~ rat hie wheat . ‘ ~<G = aS 2 ‘ - . ie 5 ees 9 ‘4 as 2 ~ . - natal >: 7

. ~ Nea ri ae ET aan ee ee eee ees 7 a fi sant os ce See sl bli ¥ ioe LS Poets + ne > >

SOE Pe Ce Pe ° cheat i te ? if ‘ “3 ead 5 x) , ‘

see

* Dart &

13

the instant case, is also involved. That statute reads in

a,

‘Action for death or personal injury within national

park or other place under jurisdiction of United States;

application “of state law.* In the.case of the death of

any person -by thie: neglect or wrongful act of another

“within a nationial park or other place subject: to-the ex-

clusive jurisdiction of the United States, within the

exterior boundaries of any state, such right of action

shall exist as though the place were under the jurisdic-,

tion of the state within whose exterior boundaries such

place thay. bei seus ae aes io Italicized i in original)

The only case. ni which the actus of that- Aet has

bee be fore this C ourt is, Murray v. Joe Gerrick & Co., supra

291 U. $..315),-in Which it was held that the Washington _

Workmen's Compensation Act was not thereby rendered

effective ingFederal territory. True, that State law was

. ae oe &. ae . — Tr °,° :

enactecLafter the cession of jurisdiction to thé United States.

However, no distinetion is made by the statute itself upon -

that ground. The deci ‘ision in that case seems to have been

based priticipally upon the ground that the remedy granted

by fhe’ State statute and which it was sought to enforce

“therein Was not’a “fright of action’’ *, within the meaning

thereof. It was said that the purpose of that Act Was to

prevent the abatement of causes action for injuries result-

ing in death, aceruing in Federal terr itory. That this was,

in fact, its _ purpose Was stated by its: sponsor, the late

Senator Walsh of Montana, in explaining it in the Senate

(Congressional Record, Vol. 69, Part 2, pp. 678, 1298, 1486).

Since the enactment of Act of February 1, 1928, 45 Stat.

Pde (16 USS. OAL, Bee. 457), several bills have been intro-

duced in Congress which were intended to require com-

pliance with State safety laws on Federal projects, bufall -

failed of etac tment. The latest of which we are aware was

introduced in the first session of the -75th Congress by

‘ ©

oe

2]

ld

=

.

14

Senator caneia (S. 1744; Congressional Record, Vol. Sl,

No. 42, p. 2159). It read : ,

**Be it efacted,”” ete., “That all agencies of the Fed.

eral Government’ undertaking construction of public

buildings and other public works under Federal law

a —— Shall’ observe, and shall require all employees tnd con-

tractors to observe the various State safety laws, as well

‘as safety laws and regulations of the Federal Govy-

ertnent.’

It woulil seem therefore that Congresis not only “did not |

construé the Act of February 1, 1928, as adopting suc hh St: ite

laws for thie regulation of Federal projects, but that it Wis,

unwilling to do so. fens

It is ‘appellant's contentiow that the Federal question-

prese nti in the instant case are substantial for the reason

that they have never’ been directly dee ided by this Court:

that. a final and definite determination thereof is of the great,

“est importance, not only to ap spellant, but to all others con

tracting with the United-States for similar work, and that

the ‘decision of the State courts in the instant case fs. con

trary to tlie intent of the U ited § States as expressed in it

contract with appellant.

There is‘appended hereto copies of the opinions of the

"Supreme Court -of the State of New York, Kings County,

and of the Appellate Division of the’ Supreme Court, See

ond Judicial Department, delivered in rendering their re

spective judgments herein. No opinion was delivered }y

the Court of Appe: ils 1 in rendering the judge ut soughit to Iie

reviewed, , . >: am

@

Cases Believed to Sustain J urisdiction,

The following decisions of this eC ourt are believed to » sus

tain jurisdiction of this appeal: : /

Fes

‘e

ay 3 . oie

é +9 . » “

‘ B , . oe a

# ¥ . ee ; pee

1 - x ay H cae! ‘ ‘

or i ” .

2 ie z . , <7 . °

. - © sees “”

«

Hamburg: An merican Steamship Co. v. Grube, 196 U.S

407, 414; ; ;

Dickenson NV, Stile ‘Ss, 246 1 s. 631, 632;

Dahake-W alker Co. v. Bondu mt, 257 U.S. 282, 2 28

e289 ; ea eer om: .

Gr ‘ard V. Krensky, 259.U.S. 503, 907,510; °° .

Home Insurance Co, x. Dick, 281 U.'S. 397, 406, 407 ;

Near ve State of Minnesota, 283 U. S..697, 709, #22, 723.

Respectfully submitted,

\

CLARENCE K. MELLEN,

FREDERICK MELLOR,

a. Alttorne ys! for ‘or Appellant,

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, as

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4. pod —

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16

« EXHIBIT AY,

: Monel. of ‘Appellate Division of the Supreme Court of the

State of New York, Second Judicial Department.

Supreme Court, ‘Appellate Division, Second Department.

Ka: ATHERINE Saprakuta, a& Administratrix, ete., of Nicliolat -

Sadrakula, Respondent,

3 vs,

JaMEs Stewar? & Co., Ixc.,.fppellant.

~ Present: Lazansky,.P: J., Hagarty, Carswell, Davis and

; Tay ler = dr, y J JJ. ’ ‘ ; i hs

“Action for damages for the death of plaintiff’s decedent

As a Consequence of.a violation by the defendant of Section

341, subdivision 4, Labor Law, in the course of the erection

of a Federal post office building.

© Judgment for plaintiff whanimously afirmed, with costs,

(a) The evidence adeqriately’ established that the pUrONi

~ mate cause of the decedent's déath wax defendant's faihire

to plank over the steel béams in the western area of the

bay’ as required: by’ Sectton. 241, subdivision 4,. Labor

‘Law. (b) The Labor Law provision was in effect. at. the

place of the accident because that statute was enacted prior

% the acquisition of the P¥operty dy the Federal Govern.

anent. The common law and statutes in effect before the

act of cession remain in force until displaced by Cangress—

(Kaufman +. Hopper, 220 N. Y..184, 187, 115 Nv EL 470.

—_and cases cited’ therein). There has been no action by Con-

vress displacing the Labor Law in respect of this Federal

reservation. Such Federal action as has taken place i

confirmatory ef plaintiff's right to invoke- the applicable

State statutes (45 Stat. of, tit. 16, U. S. Code, see. 457).

‘"

CoRRECTED OpiNtos BY Lewis, J., Datep Noviecesn 30, 1937.

3 Supreme Court, Trial Term—Part VIII.

+4)

q By Mr. JUSTICE aa

Sadrakula, as adin’x, &e., v. eae Stewart & Co., ine.

ad ano. (corrected)—Action by the plaintiff against the

general contractor, James Stewart &-Co., Inc., for. damages

‘resulting from the death of -her husband, an eniployee of

‘asubcontractor. The proximate cause of the acciderit which. -

ocvasioned decedent's death was the failure of the defend-

ant.to thoroughly plank over the beams as required by see-

tion 241, subdivision 4, of the Labor Law. _ The defense of

EF assumption of risk is not maintainable where, as here, the

relationship of master and servant‘did not exist. There was ,

likewise a failure to establish ‘that plaintiff’s decedent was

euilty of any contributory negligence. I direct judgment

in favor of the plaintiff: for the sum of $23,125.

- Lewis, J. S.C.

9

(2931)