employee is engaged in manufacturing, she is under the act; if the employee is engaged in selling, she is probably out of the act. So that you may have a situation where the employee at one time may be under the act and may not be under the act at a different time; and there may be a considerable period of time when you cannot tell whether the employee is within the act or without the act. Now, if it be determined the method as stated in the act of defining the kinds of employment that comes under it is unwise, the question arises what method should be adopted? The experience of other jurisdictions has perhaps run along two lines; one to include everybody in industrial employments excepting farm servants, domestic servants and such others as you wish to except; the other method is to include every business which has employees in excess of a certain number such as five or six.

Passing from that section relating to the trades to be covered, we come to the question of compensation. I am very glad to say that the gentlemen here who have accepted our invitation to speak will discuss that with you very fully and give you the pros and cons of the question of this scale of compensation. It is said that the scale is too high. It is said that its effect will be to handicap the employers of this State as against the employers of other States. It is said it is so high that it will lead to malingering and fraud in certain cases. Whether that is true or not are matters which we think the Association would be glad to have light on. Then when you look at the method of the determination of the compensation, it has been suggested to us that the method is not a wise one. The standard is supposed to be the average weekly wage or earning power of the employee, but when you come to look at the definition by which that is to be determined, you will find

certain artificial standards whereby an arbitrary method is provided. For instance, there is taken into account in certain cases the earnings of the injured employee with some other employer. There may also be taken into account the earnings of some other employee, and then there may be taken into account in certain instances the earnings of that employee or some other employee in some other most similar employment. One effect of this standard of computing compensation is, among other things, that a man in irregular employment will become entitled to a much larger proportionate scale of compensation than his actual earning power warrants. If a man works only two days a week, or three days a week, if he is injured, the standard of his remuneration to be determined as one-fiftysecond of three hundred times his daily wage, so that it would result in assuming that he actually had employment for three hundred days in a year and dividing that by fifty-two.

As I wish to be very brief I will merely mention one or two other of the more important things which have been brought to our attention. The law provides by section twenty-five, that the employer or his insurer in making payments shall make payment through the State Commission, and by looking at section fifty-three of the act, it is somewhat ambiguous as to whether that payment would discharge the employer. It has been said that while perhaps the State Commission should well pass upon the terms of an adjustment, or of a settlement, that to make the commission, the medium through which this money shall get to the employee is unwise, that it creates a great bureau which will have at all times in its hands a large sum of money; and that it is infinitely wiser to allow people to pay and receive the money outside of the commission when

the claim is once adjusted than it is to compel employers or their insurers to pay the amount through the machinery of the State Commission.

Then finally when we come to look at the provision for a State insurance fund we find that the State Commission has over it no auditing or visitorial power in any way; in other words, that these gentlemen of the commission are to go into the business of insurance and nobody can tell them as to whether they are running a solvent insurance fund or whether they are keeping sufficient reserve, or advise them in any respect in reference to the fund. Some of us are in favor of State insurance, others are opposed to it, believing in the long run it will not be successful. Whether we are opposed to it or whether we are in favor of it, I take it we are all in favor of having the State fund run on sound insurance principles, and therefore it has been suggested that it is wise to have somewhere visitorial or regulatory power- at least of examination and report over the State fund. This need not go so far as to determine the rate which the State Commission shall charge, but it has been suggested it should at least go so far as to be able to determine whether it is solvent under well known standard insurance principles.

Gentlemen, these are some of the major questions which have been suggested to us in connection with this act. If we find that some of these criticisms are just, then when this law is re-enacted, as it should be, the act should be modified accordingly, to the end that this State shall begin with an act which is as sound as American experience will help us to make it at this time.

The President:

We will adjourn until two o'clock.

AFTERNOON SESSION

SATURDAY, January 31, 1914.

Francis Lynde Stetson, of New York:

Mr. President, I move that the order of business be suspended and that we proceed now to the election of officers and then take up the debate, otherwise the debate may continue so late that it will not be disposed of and that will give an opportunity for gentlemen who wish to participate in the debate to come in.

The motion was duly seconded and carried.

Mr. Stetson:

Mr. President, I move that we proceed to vote for the nominees in the report of the Committee on Nominations which was presented.

C. Andrade, Jr., of New York:

I second the motion.

The President:

Mr. Olney, will you take the chair?

Mr. Peter B. Olney assumed the chair. Francis Lynde Stetson, of New York:

Mr. Chairman, I move that the chairman of the Committee on Workmen's Compensation Act, Mr. Campbell, be directed to cast the ballot of the Association for the nominees presented by the Committee on Nominations yesterday. Motion duly seconded and carried.

Frederick B. Campbell, of New York:

Mr. Chairman, the vote has been cast.

Chairman Olney:

The chairman reports that the ballot has been cast and that the ticket reported by the Committee on Nominations has been unanimously elected.

The following officers and members of standing committees, named in the report of the Nominating Committee, were elected:

REPORT OF COMMITTEE ON NOMINATIONS To the Members of the New York State Bar Association: The committee appointed to nominate officers of the Association for the ensuing year, report that at a meeting of this committee, held in New York City, December 13, 1913, the following persons were unanimously agreed upon for the respective offices, and your committee respectfully recommends their election: