(115 A.)

indemnity under sections 4 and 5 of this act, may be entitled to indemnity from the person so liable to pay damages as aforesaid, and shall be subrogated to the rights of the employee to recover damages therefor."

In construing that act the Supreme Court of Illinois said that sections 3 and 17 should be construed together, and that

"Paragraph (b) provides that if the employee has recovered compensation the employer may be entitled to indemnity from the person liable to pay damages and shall be subrogated to the rights of the employee to recover damages. He is not entitled, however, to more than indemnity out of the damages recovered and the subrogation must be limited to that amount. The amount of recovery, however, is not so limited." Houlihan v. Sulzberger & Sons Co., 282 Ill. 76, 118 N. E. 429.

Section 29 of the New York Act (Consol. Laws, c. 67, as amended by Laws 1914, c. 41) required the employee, or his dependents, to elect to take compensation under the act or to pursue his remedy against the negligent person, and further provided:

"If he elect to take compensation under this chapter, the cause of action against such other [person guilty of negligence] shall be assigned

to the state for the benefit of the state insurance fund, if compensation be payable therefrom, and otherwise to the person or association or corporation liable for the payment of such compensation."

above the amount paid as compensation is for the benefit of the injured employee." Louis Eossert & Sons v. Piel Bros., 112 Misc. Rep. 117, 182 N. Y. Supp. 620.

See, also, Casualty Co. v. A. L. Swett Electric L. & P. Co., 174 App. Div. 825, 162 N. Y. Supp. 107.

The Illinois act, so far as the present question is concerned, is very much like section 57 of the Maryland Act (section 58, art. 101, vol. 3 of the Code) prior to its amendment by chapter 456 of the Acts of 1920. The Illinois act provided that the employer should be "subrogated" to the rights of the employee to recover damages, while the Maryland act provided that

"If compensation is claimed and awarded or paid under this article any employer may enor association carrying the risk or the state force for the benefit of the insurance company, accident fund, or himself, as the case may be, the liability of such third person; provided, however, if damages are recovered in excess of the compensation already paid or awarded to be paid under this article, then any such excess shall be paid to the injured employee or, in case of death, to his dependents, less the employer's expenses and costs of action."

The liability which the employer is thus authorized to enforce is "the liability of such third person," and the only liability of "such third person" referred to in the act is the liability for "damages," which the injured em

Construing this section, the Supreme Court ployee could have enforced had he elected to of New York said:

* * *

"The Workmen's Compensation Law takes no rights from the injured employee which other wise he would have had against a third party. Instead, it gives him an additional right, namely, the right to compensation from his employer. He can elect to accept the compensation under the statute, or he can sue the third party as though the Workmen's Compensation Law did not exist. * If he elects to take compensation then he cannot later sue the third party whose negligent act injured him. In that event his claim against the third party is assigned to the person paying the compensation by virtue of the provisions of section 29 of the statute. That party may then sue the wrong doer and may recover in the same manner as the injured employee could have recovered had he brought suit against the wrongdoer. And the amount that may be so recovered is not limited to the amount paid as compensation. * Paying the compensation the employer may then sue the wrongdoer and all that is recovered

do so. This liability is not limited by the act to the compensation awarded or paid, but, on the contrary, the act clearly indicates that no such limitation was intended, and following the reasoning and decision of the cases referred to it seems clear that the Legislature intended the same measure of recovery to apply as would have applied had the injured employee elected to pursue his remedy against the negligent third person.

[6] The fact that the suit is in the name of the employer, for the benefit of the insurance company and the injured employee, Harry Alles, if not in strict compliance with the statute, is immaterial, as the act expressly directs the application of the amount recov

ered.

Finding no error in the ruling of the court below, the judgment appealed from will be affirmed.

Judgment affirmed, with costs.

ENGLISH v. CITY OF ASBURY PARK et al.

(Supreme Court of New Jersey. Jan. 13, 1921.)

1. Mandamus 154 (4) Ordinance of town prohibiting keeping public garage in certain locality is no defense in proceeding to compel grant of building permit, purpose of building not being shown.

In application for mandamus to compel a building inspector to issue permit for building to be used as a garage, a town ordinance prohibiting keeping of public garage in the locality is no defense where the ordinance does not prohibit the erection of a building, and the rule does not show whether the garage was for public or private use.

2. Mandamus 154(4)-In action against inspector to compel issuance of building permit, petitioner must show compliance with ordinance requiring plan drawn to scale.

In action for mandamus to compel an inspector to issue a building permit, petitioner must comply with ordinance requiring a statement of specifications on blanks to be furnished to the applicant, and submit a complete copy of the plans of the building drawn to scale regardless of verbal permission by the building inspector and police to erect the building.

3. Mandamus 10-Writ denied where right is not clear, and it will create disorder and

confusion.

The right to writ of mandamus, must be clear, and it will be denied where it creates

disorder and confusion.

4. Mandamus 7-Power to issue writ dis

cretionary.

Power to issue the writ of mandamus is discretionary.

Application for writ of mandamus by J. Claude English against the City of Asbury Park and others. Writ refused.

terials for the operation of internal combustion engines could include the mere keeping of gasoline for the purpose of a private car. Even if they were prohibited, how could that affect the right of the relator to a permit for a building, even though it is intended to be used as a garage, for a man has a right to put up a building on his own property, no matter what he may intend to use it for thereafter. If the building in itself—that is, in its structural part-does not infringe the ordinance, he must of course take his chances of getting a permit thereafter to run a garage or to keep gasoline only. Until, however, he does this it is open to him to change his intention. The ordinance does not forbid the erection of a building when it may be susceptible of use as a public garage thereafter.

[2] It is like the case of the resolution directing the town officials to cut down telegraph poles that were improperly erected. The resolution was held in subject to review until something had actually been done under it, or was immediately threatened, but that does not settle this case. We are unable to see what right Mr. English has to a manda

us until he has shown a compliance with the ordinance, and has submitted to the building inspector a detailed statement in duplicate of the specifications, on appropriate blanks to be furnished to applicants by the department of buildings-a full and complete copy of plans of such proposed work accurately drawn to a scale. The fact that the building inspector told him he was satisfied, and did not ask for anything else, and would give him a permit, and the fact that he was told by the police that he could go on with the building, we think, does not do. away with the necessity of compliance by him with the law of the city. We do not know where the building inspector gets power to grant oral permits, regardless of the com

Argued before SWAYZE, PARKER, and pliance with the ordinance. We think, there BLACK, JJ,

Ward Kremer, of Asbury Park, and Robbert H. McCarter, of Newark, for relator. Durand, Ivins & Carton, of Asbury Park, for defendants.

fore, that this rule should be discharged.

[3, 4] There is also, in addition to what has been said above, a fundamental difficulty against granting a mandamus in this case, for the reason given by this court in the case of McCormick v. City of New Brunswick, 89 N. J. Law, 117, 119, 97 Atl. 777, that it would introduce confusion into the situation. Mandamus will be denied where it will create disorder and confusion. To invoke the power of the writ of mandamus, the right must be clear. Hugg v. Ivins, 59 N. J. Law, 139, 36 Atl. 685; Vannatta v. Smith, 61 N. J. Law, 188, 38 Atl. 811. The power to issue a writ of mandamus is a dis

PER CURIAM. [1] Application for a mandamus on a rule to show cause to compel the building inspector of Asbury Park to issue a permit for a building. The rule does not state what kind of a building it is or the purpose for which it is to be used, but it is conceded that it is meant for a garage. It is in a part of Asbury Park in which, under the ordinances, a public garage is not permit-cretionary one. Jones Co. v. Town of Guttented. There is nothing to indicate that a private garage is not permitted. This being so, we do not see how the prohibition of the keeping of gasoline and other dangerous ma

berg, 66 N. J. Law, 58, 48 Atl. 537; Id., 66 N. J. Law, 659, 51 Atl. 274.

For all of these reasons, mandamus is refused, with costs.

(93 N. J. Eq. 80)

(115 A.)

DELAWARE, L. & W. R. CO. v. SMYTH et al. (No. 46/719.)

deliver the release, and the cause was so transferred. After the record at law was filed in this court, the Adams Express Company was brought in as a party defendant,

(Court of Chancery of New Jersey. July 28, an issue was framed by filing pleadings ac

1921.)

Contract

1. Master and servant 100(1)
releasing master's liability for negligence void

under state law.

A contract in which an express company employee assumed the risk of accidents caused by or resulting from negligence of the express company, or persons operating a railroad, vessel, or vehicle, is rendered invalid by P. L. 1913, p. 302, as against the public policy of the state.

2. Master and servant 100(1) Express company not a "carrier," within federal act forbidding release of employer's liability.

An express company is not a "carrier," within the provisions of federal Employers' Liability Aet (U. S. Comp. St. §§ 8657-8665), section 8661 governing the liability of common carriers to their employees and forbidding contracts releasing liability for injury.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Carrier.]

cording to the practice in equity, and proofs were taken.

The facts appearing are that the defendant, on the 6th day of June, 1917, signed an application for employment with the Adams Express Company, and signed an agreement this agreement was signed there existed an captioned "Accident Release." At the time agreement between the complainant and the express company, called an "express transportation contract," in which the express company bound itself to indemnify complainant. It is unnecessary to recite these agree ments in full, because they are substantially the same as those referred to in the opinion of Mr. Justice Swayze in the Supreme Court in the case of Dodd v. Central R. R. of N. J., 80 N. J. Law. 56, 76 Atl. 544, excepting thisthat, in the "accident release" in the present case the defendant assumed the risk of accidents and injuries resulting by or from the gross or other negligence of any corporation or person engaged in any manner in oper

Action by Samuel Smyth against the Del-ating any railroad, vessel or vehicle, etc., and

aware, Lackawanna & Western Railroad Company. Defendant's answer was in the nature of a bill for specific performance, and it prayed that the case be transferred to equity, which prayer was granted, and the Adams Express Company was brought in as a party. Bill dismissed.

in the event of the defendant recovering from any of the carriers with whom the express company had contracted, for injury, etc., due to the gross negligence of the carrier, etc., by means whereof the express company under its agreement should be compelled to pay such negligent carrier, the defendant bound

Frederick B. Scott and G. W. Smyth, both himself and his legal representatives to reof New York City, for complainant. Alexander Simpson and Thomas F. Tumulty, both of Jersey City, for defendant Smyth.

pay such sum, with interest, etc., to the express company. In Dodd v. C. R. R. of N. J., supra, 80 N. J. Law, at page 59, 76 Atl. 546, Mr. Justice Swayze, speaking for the SuWm. K. Flanagan, of Newark, for defend- preme Court, said, referring to the question ant Adams Express Co.

of public policy:

"This question is to be solved in view of GRIFFIN, V. C. Samuel Smyth, a defend- the existing state of the law without regard to ant in this suit (who will hereinafter be re- the changes, which perhaps now are generally ferred to as the defendant), commenced his considered desirable changes, introduced by suit in the Supreme Court of this state against statutes in other jurisdictions. We have no the complainant to recover damages for per- statute forbidding a contract by which the emsonal injuries alleged to have been sustain-ployee agrees to exempt his employer from liability" ed on the 23d of August, 1917, by reason of the negligence of the complainant in operating its cars. He was an employee of the Adams Express Company, and at the time of the accident was engaged as a stacker in a car of complainant, and was lawfully there. The complainant, by its amended answer in the suit at law set up that Smyth was a servant of the Adams Express Company, and upon entering its employ signed an agreement to execute a release of claims of the character set out in the declaration, and prayed that the case be transferred to equity, to the end that the defendant might be decreed to specifically perform his contract to

and, finding that the contract was not, in law, against public policy, reversed the judg ment of the district court, which was in favor of the plaintiff. This case was unanimously affirmed by the Court of Errors and Appeals, 82 N. J. Law, 524, 83 Atl. 1118, April 19, 1912.

[1] Since the above decision, on April 1, 1913 (Laws 1913, c. 174, p. 302; 1 Supp. Comp. St., 1915, p. 1651), and prior to the date of the agreement in question, a statute was passed providing, in paragraph 23 of section 3, as amended (page 312), as follows:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(115 A.)

ion.

adopted a policy of excluding all union men answer of the defendants, the local, while from its service, and made it a condition specifically denying the representative caof hire that its employees should not belong pacity of Stevenson, does not shirk or seek to or join labor unions while in its employ, | to evade responsibility for his activities in and this policy it has followed ever since. its behalf. The joint answer of the union Joining the union meant the loss of the serv- and its officers specifically denies the charges ant. In 1920 the union, Local No. 40, re- of intimidation and violence, but collectively sumed picketing the complainant's plant, not they admit, with argumentative modification, in numbers as large as three years before, the charges of picketing and the solicitation nor with the same degree of violent coercion of the complainant's employees to memberand intimidation, nor for all the purposes ship in the organization, and implicitly for which the strike had been called. The adopt all of Stevenson's efforts, charged and object of the present picketing is to persuade proved, lawful and unlawful, as their comthe complainant's coremakers and molders munity efforts. Stevenson embodied the unto join the union in breach of the conditions of their employment, the ultimate object obvi- The case as made manifestly calls for ously being to unionize the complainant's the intervention of the court, to the extent, shop, as part of the broader scheme of union- at least, of the mandate in Jonas Glass Co. izing all foundries in Newark. The pickets v. Glass Bottle Blowers' Association, 72 N. stationed themselves daily near the complain- J. Eq. 653, 66 Atl. 953, affirmed 77 N. J. Eq. ant's plant and intercepted its employees, sol-219, 79 Atl. 262, 41 L. R. A. (N. S.) 445. iciting them to membership in their local, ac- [2, 3] The complainant asks more: That companying their solicitations with threats the defendants be restrained from soliciting of violence, and sometimes with actual vio- the complainant's employees to join the union lence against the reluctant and unwilling, with intent to have them breach their conand with such marked success that the core- tract of service. I am of the opinion that makers and molders were reduced to five, it is also entitled to this relief. It is the thereby greatly hampering the complainant complainant's legal right to hire men unin carrying on its works. The defendants affiliated with labor unions, and to make knew the condition of employment, and that continuance of unaffiliation a condition of the the complainant was conducting an “em- employment. That is as assured to the employer's closed shop," the antithesis of a ployer as is the right of the unions to make "union closed shop;" i. e., one where unions, it a condition of membership that their memhaving the upper hand, tolerate no labor ex-bers shall not work in shops where nonunion cept that by union hands. The efforts of men are employed. And it is the master's the defendants were not confined to solicit- legal right to have his servants abide with ing members for their union, and which, him, free from interference of the union, as when accomplished, they knew would re it is the right of the union to prosper unsult in the members' discharge from com- molested by the employer. The right of each plainant's employ, but their further effort to lawfully prosecute his affairs is equally was to foist upon the complainant these new-within the protection of the law, and if in ly made members, enjoining them to secrecy, with the aim to eventually unionize the complainant's shop.

their competition for labor harm falls to one from the lawful promotion of the other's business, the injury is an inevitable incident, legitimately inflicted and excusable. So long as each keeps advancing his interest without purposely intending to harm the other, there is no room for complaint or cause for action; but when either converges the line of advance in assault upon the other, then the law, through its courts, calls a halt by injunction. In other words, in their progress they must not step on the other's toes with intent to injure.

[1] The activities of the defendant union in and about the complainant's works were carried on by one Stevenson, its financial secretary, with whom were associated members of other locals of the Molders' Union. As to Stevenson's guilt of intimidation, violence, and seduction of the complainant's employees, I have no doubt, notwithstanding his denial. He professes to have acted as an individual unionist, and not as a representative of his local; but this is idle eva- Labor has not as yet appealed to the sion. The defendant local is an unincorpo- courts, but if the present "employer's closed rated organization of men-a copartnership shop" movement has for its ultimate object -bound together for the attainment of the overthrow and destruction of organized worthy objects, mutually beneficial, some- labor-an ulterior and unlawful object-and, times, unfortunately, sought to be obtained by means as unworthy as those here repreby unworthy means, and in the prosecution of their common object the action of any one member is binding upon all; and so the conduct of Stevenson in behalf of the organization, and his methods, though obnoxious in the eyes of the law, are chargeable to the

hended, capital is certainly extending the invitation. The employer's complaint has been heard and vindicated by our highest tribunal. An issue in most respects like the one here presented was before the Supreme Court of the United States in Hitchman Coal