Philippo Dragotto, an Infant, by Salvatore Dragotto, His Guardian ad Litem, Respondent, v. Charles Plunkett, Appellant

Philippo Dragotto, an Infant, by Salvatore Dragotto, His Guardian ad Litem, Respondent, v. Charles Plunkett, Appellant. Second Department, June 8, 1906. Negligence complaint — allegation that plaintiff, an infant, was employed in violation of. Labor Law should not be stricken out as irrelevant. The defendant in an action for negligence is hot entitled to have ah allegation that th,e plaintiff, being between the ages of fourteen and sixteen years, was employed by the defendant «'violation of the Labor Law stricken out as irrelevant. , The employment of such infant without the certificate required by the Labor Law is evidence of negligence, and, if proven, establishes presumptively that the plaintiff did not possess the judgment, discretion and caution necessary tp the employment, • Appeal by,the defendant, Charles Plunkett, from so much of an order of the Supreme Court, made at- the Kings- County Special' Term and entered in the office of the clerk of the county of Kings on the 15th day of February, 1906, as denies the defendant’s motion to strike out certain allegations of the complaint as irrelevant, etc, E. Sidney Berry, for the appellant. James C. Cropsey, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The defendant in a, - negligence .action seeks .to settle,the law in advance of the trial by a motion to strike out an allegation of the . • complaint to the effect that the plaintiff, being between the ages of fourteen and sixteen years, was employed by the defendant in violation of sections 70 and 71 of the Labor Law x(Laws of 1897, chap. 415, as amd. by Laws of 1903, chap. 184, and Laws of 1905, chap. 518). The contention of the defendant is that as a minor bétween ' ■ 'the ages of fourteen and sixteen years may be employed in case the proper certificate is issued and filed, the mere fail tire to obtain the certificate cannot have had anything to do with the injury to the plaintiff; but the issuance of the certificate, instead of being 'a mere' formality, is carefully' guarded. Among other .things, the statute provides that the officer issuing it must make and file in his office a statement respecting the child’s ability to read and write, its age, its development, its health and its physical ability to perform the work which it intends to do. The effect of the employment of a child under fourteen years of age in violation of the statute was considered in Marino v. Lehmaier (173 N. Y. 530) which held such employment to be evidence of negligence, and that it could not be held as matter of law that a child • thus employed was guilty of contributory negligence, or assumed the risks obvious or incident to the employment. In Sitts v. Waiontha Knitting Co., Ltd. (94 App. Div. 38), it was said that the rules laid down in the Marino case were applicable to such a case as the present. It is true, as urged by the appellant, that, this statement was dictum, hut we think it correctly states the law applicable to the case at bar, and that proof of the allegation sought to be stricken from the complaint would establish presumptively that the plaintiff did not possess the judgment, discretion, care and caution necessary for engagement in the vocation for which he was employed. It necessarily follows that the motion was properly denied, . The order should be affirmed, with ten dollars costs and disbursements. Jenks, Hooker, Gaynor and Rich, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.