there was no hemorrhage, although the deceased had told the physician that he had had one, and that there was no evidence to indicate that the injury was "anything more than a very incidental bump, producing no visible signs." About three weeks after the fall deceased returned to work, apparently recovered from the injury. He quit work on the third day, complaining of feeling tired. About nine months later he died from pulmonary tuberculosis. The Commission found that at the time of the injury deceased had dormant tuberculosis, which the injury aggravated, so that it became acute and caused his death. There was an award of compensation, and on appeal the award was affirmed, the Court saying:

"The evidence shows quite clearly, and the commission has found, that the disease existed before the injury, which accelerated the disease and shortened life. The injury caused a hemorrhage which, so far as the evidence discloses, the deceased never experienced before or after, and there is medical testimony to the effect that such an injury would develop the disease then existing. If an employee has a disease, and, having the same, receives an injury arising out of and in the course of employment, which accelerates the disease and causes his death, such death results from such injury, and the right to compensation is secured, even though the disease itself may not have resulted from the injury.""

Deceased employee was crushed under a load of lumber and suffered several broken ribs and other lesser injuries. He was confined to his bed from the time of the accident until his death, six weeks later. An autopsy disclosed that he had pulmonary tuberculosis in such an advanced stage that one lung had been entirely destroyed and

the other to a considerable extent, and that he was suffering from other diseases. Three physicians testified in behalf of the employer that, in their opinion, death was caused by pulmonary tuberculosis, and that

(11) Van Keuren v. Dwight Divine & Sons, 179 App. Div. 509, 165 N. Y. Supp. 1049, 15 N. C. C. A. 644-645.

the injuries which deceased had sustained were not sufficient either to cause or hasten his death. The claimant called no physician, but other witnesses testified that deceased had worked continuously at hard labor until the accident, had apparently been in good health theretofore, and had never been able to leave his bed thereafter. In affirming an award of compensation the Court said that, "in view of all the circumstances, we are unable to say that it conclusively appears that the injuries sustained had no part in causing his death, nor that the trial court was concluded by the testimony of the experts."12

In another New York case compensation was allowed for the death of an employee from pulmonary tuberculosis brought on by coal gas poisoning.13

Typhoid Fever.-Deceased was employed on a delivery wagon, and in the course of his work fell from the wagon and struck his head. He continued to ride on the wagon the remainder of the day, but was unable to work. He worked the following day, but was not able to do so thereafter. One week later a physician was called, and four days thereafter he was taken to a hospital, where he died two days later. The Commission, in awarding compensation, found: "At the time of his accident, Harry Banks was suffering from typhoid fever in the incubation stage, which became aggravated by the severe injury to his head through the consequent lowering of his resisting power, and the said disease thus aggravated caused his death." The award was affirmed on appeal.14

Syphilis.-The driver of a bread wagon accidentally slipped and fell while getting off the wagon, and received a fracture of the right tibia, the healing of which was prolonged by reason of his pre-existing

(12) State ex rel v. District Court, Minn., 164 N. W. 1012.

(13) O'Dell v. Adirondack Elec. Power Co., 223 N. Y. 686, 119 N. E. 1063.

(14) Banks v. Adams Express Co., 176 App. Div. 916, 162 N. Y. Supp. 479, aff'd. in 221 N. Y. 606, 117 N. E. 1060.

syphilitic condition, which, aggravated by the accident, resulted in the loss of sight. It was held that while he might be entitled to compensation for the fracture, he was not entitled to compensation for a permanent physical disability due to the loss of his sight, as that did not "naturally and unavoidably result" from the accident, within the meaning of those words as used in the compensation act. "There is some slight testimony to the effect that the disease. might have been aggravated or accelerated by reason of the degeneration of the tissues, lessening the claimant's power of resistance; but this does not tend to bring the case within the letter or the spirit of the statute, for no one has ever suggested that the results of 'specific constitutional infection,' which in the present case are conceded to be congenital syphilis, constituted a legitimate charge upon the industrial life of the state."15

Compensation was allowed for the death of a railroad fireman who fell out of an engine cab and was found unconscious on the side of an embankment with scalp wounds on the back of his head, and who died later from hemorrhage of the brain and fracture of the skull; there being evidence that death was accelerated by his injuries, although he was suffering from syphilis which may have caused softening of the brain. "Even if the brain of the deceased was predisposed to apoplexy on account of the disease that Dr. Weil testified he thought affected him, it cannot reasonably be said, from the evidence in this record, that this disease would have caused his death at the time it did without the fall from the engine."16

Disease Subsequently Arising.-If an employee suffers a compensable injury which brings on a disease as matter of fact, he is entitled to compensation for the incapacity resulting from either or both. Causal

(15) Borgsted v. Shults Bread Co., 180 App. Div. 229, 167 N. Y. Supp. 647.

(16) Peoria Ry. Ter. Co. v. Industrial Board, 279 Ill. 352, 116 N. E. 651, 15 N. C. C. A. 632..

connection, of course, must be shown between the injury as a cause and the incapacity as a result.

In an English case in which the arbitrator held that a disease supervening an injury was not the natural result of the injury, it was said by the Court on appeal: "This appeal raises a question of some importance as to the meaning of the words used in the Act, 'incapacity which results from the injury.' In the first place it is quite clear that the mere contracting of a disease, apart from those particular diseases mentioned in the Act of 1906, is not, as a general rule, an accident at all; but, given an admitted accident, it is not the law to say that a disease which has been accelerated, still more if produced, by the accident, is not a matter which comes within the Act."***"The word 'results' there, of course, does not mean 'succeeds in point of time.' It means 'succeeds as a consequence of the injury,' and not, I think, as either the necessary, or the natural, or the probable consequence of the injury, but as the consequence in fact. Further, it need not, I think, be the consequence of the injury alone. It may be the consequence of the injury and of something else, at any rate where that something else would not have existed but for the accident."17

In a proceeding to terminate the payment of compensation for incapacity originally due to an injury but supervening which the employee suffered from a cardiac affection, the Court said that, "if the cardiac affection is connected with the accident the appellant (employee) has not recovered."1

Under the Pennsylvania Act, which defines an injury as meaning only "violence to the physical structure of the body, and such disease or infection as naturally results therefrom," the disease in question must be

(17) Ystradowen Colliery Co. V. Griffiths (1909). 2 K. B. 533, 100 L T. 869, 25 T. L. Rep. 622, 78 L. J. K. B. 1044, 2 B. W. C. C. 357, 4 N. C. C. A. 917.

(18) Quinn v. M'Callum, 46 S. L. R. 141, 2 B. W. C. C. 339.

a sudden development from some abrupt violence to the physical structure of the body, and not the mere result of gradual development from long-continued exposure to natural dangers incident to the employment of the deceased person, as in the case of occupational diseases. 19

Blood Poisoning.-An employee, while engaged in shaving and painting poles, accidentally caught his left hand between one of the poles and another timber, thereby bruising the flesh and knocking a small piece of skin off the back of his hand. The abrasion became infected and blood poisoning followed, resulting in inability to work. In holding that the injury was compensable, the Court said: "We perceive no merit in the claim that this disability was not proximately caused by the injury and abrasion of the skin. Such results do ensue from such abrasions, and they are brought about by the operation of what are ordinarily considered natural forces, that is, by the intervention of infectious germs usually, or at least frequently, present in the air or on the surface of substances with which any person may come in contact, and which are invisible to the eye and imperceptible to the

The accident was the proximate cause of the injury within the definition of the term 'proximate cause.' "'20

Miliary Tuberculosis.-One Schultz was employed by a brewing company, and at the time in question was about to engage in varnishing a so-called drum, located in the cellar. When he started to work he opened the drum and undertook to light a gas jet or lamp, and an explosion of gas occurred which burned his face and hands. The accident took place on the 7th of February, and immediately after the accident a physician was called, by .whom Schultz was treated for three or four days, when the physician advised him that he could go back to work. His wife testified that

(19) McCauley v. Imperial Woolen Co., Pa., 104 Atl. 617, 17 N. C. C. A. 864.

(20) Great Western Power Co. v. Pillsbury, 171 Cal. 69, 151 Pac. 1136. L. R. A. 1916A 281.

he complained from the time of the injury that his throat hurt him when he swallowed, and for that reason he refused to drink beer at the brewery. On March 16th he called the same physician and complained of stomach trouble, and the physician found him in a rundown condition and prescribed for him. On April 6th or 8th he called upon another physician, who diagnosed his case as one of miliary tuberculopains in his chest, and said that he had sufsis. At this time he was suffering from fered ever since the explosion. He died on June 16th from miliary tuberculosis. Physicians testified that the inhalation of the gas fumes would furnish an opportunity, if the infection existed at the time, for the latent condition to be kindled into an active condition; and that if the infection was not existent the inhalation of gas would bring about destruction of air cells in the lungs and would lower his vitality and make the person more susceptible to such infection; that the usual time for the course of miliary tuberculosis is from four to six weeks, but that it might continue for a period of three or four months. There was also testimony that Schultz was apparently strong and healthy prior to this accident. The Industrial Commission found "that the miliary tuberculosis from which deceased died was proximately caused by the accidental explosion of gas," and awarded compensation. On appeal the award was affirmed.21

Pericarditis. An employee, in the course of his work, slipped and fell, striking his breast against an iron rod. He was taken home that night, and immediately went to bed complaining of a pain in his left side. and of difficulty in breathing. After the injury a mark, about five inches long, was found over his heart. He had worked almost continuously at general labor, and the only sickness he had ever had was a year before the accident, which lasted about two weeks. A phy

sician testified that a blow over the heart would cause acute disease, and that in the instant case it brought on a condition known as pericarditis, which caused the employee's death. An award of compensation was affirmed, the Court holding that the evidence sufficiently indicated that the injury proximately caused the death.22

Embolism.-One employed as a painter, in the course of his work, fell from a ladder and sustained a fracture of the pelvic bone, and died two weeks later. He was 38 years old, and in good health prior to the accident. An autopsy revealed a small rupture of the right ventricle of the heart. The surgeon who performed the autopsy testified that the wall of the ventricle was unusually thin, but that in other respects the heart was normal. He found no embolus, and was inclined to think that there was no causal connection between the injury and the rupture. Another physician, who had made a microscopic examination of the heart, testified that, while the wall of the ventricle was thin, it was not more so than in many cases of men in normal health; that in the absence of any sudden or great strain on the part of deceased, he would attribute the rupture to a sudden pressure of blood upon the wall of the ventricle, and that such pressure might result from the lodging of an embolus in an artery leading from the heart to the lungs: that such an embolus could have resulted from the pelvic fracture, and have been carried from its point of origin to the heart; that an embolus is easily lost in an autopsy, and the failure to discover one does not necessarily indicate its non-existence.

In affirming an award of compensation, the Court said: "It is true that, on crossexamination, Dr. Orphuls said he could not state that, in fact, there had been an embolus, and that his explanation of the cause of death was 'guesswork.' But a reading of his entire testimony shows that he did.

(22) Bucyrus Co. v. Townsend, Ind. App., 117 N. E. 656, 15 N. C. C. A. 646-647.

not, by this, mean to say that he was indulging in mere conjecture or speculation. He was giving what, on the facts before. him, and in the light of medical science, appeared to be the most probable explanation of the event. The theory that an embolus arising from the injury had caused the death was 'guesswork' in the sense that there was no direct evidence of the existence of such embolus. But, in Dr. Orphuls' view, other conceivable causes were excluded by the conditions which were shown, and the one which he advanced remained as the most probable one. This was a sufficient basis for the action of the Commission."23

Pneumonia.-The deceased was employed as helper to machinists, and while in the course of his duties was struck in the face by the end of a broken belt. He revived and returned to work, but in a few days gave up and went home. A physician found him to be suffering from traumatic pleurisy of his right side. He was taken to a hospital where it was found that he had pneumonia. Five days thereafter he died. There was testimony by physicians to the effect that deceased's face, nose and side were sore; that he had excruciating pain when he breathed; that pneumonia not infrequently develops from traumatic pleurisy, and that pneumonia might have been contributed to or brought on by the traumatic pleurisy. Compensation was awarded, and the award sustained on appeal.24

Erysipelas. The deceased was a foreman of a boarding stable, and while going down the stairs leading from the loft, he slipped and fell, striking his head against a pillar. The wound became infected, and thereafter erysipelas developed which, with other complications, caused his death. An award of compensation by the Commission was affirmed by the Appellate Division of

(23) Santa v. Industrial Acc. Com'n., 175 Cal. 235, 165 Pac. 689.

(24) Vogeley v. Detroit Lbr. Co., Mich., 162 N. W. 975.

the Supreme Court, and later by the Court of Appeals, without an opinion by either Court.25

Diabetes. Claimant suffered an injury. arising out of and in the course of his employment, and, while he was suffering from diabetes, a disease, he was awarded compensation on the theory that the disease resulted from the injury. There was no evidence that he was suffering from diabetes prior to the accident, and it was shown that twenty-one months before the accident he had been examined as a life insurance risk, and pronounced a healthy man. A few days after the injury his urine was examined and there were indications of the presence of the disease. The medical testimony showed many possible causes of diabetes, among them such an injury and shock as claimant experienced. In affirming the award the Court held that the same was not based on mere conjecture.26 C. P. BERRY.

St. Louis, Mo.

(25) Leslie v. O'Connor & Richman, 5 N. Y. St. Rep. 383, 1 N. C. C. A. 501, aff'd. 173 App. Div. 988, 158 N. Y. Supp. 1120, aff'd. 220 N. Y. 672, 116 N. E. 1057.

(26) Balzer v. Saginaw Beef Co., 199 Mich. 374, 165 N. W. 785.

ULLMAN REALTY CO. v. TAMUR.

185 N. Y. S., 612.

Supreme Court, Special Term, New York County. November 26, 1920.

Laws 1920, cc. 942-953, known as the Housing Laws, which suspend for two years the landlord's right to dispossess his tenants, with certain exceptions, so long as the tenants pay a reasonable rent as therein determined, are reasonable and appropriate to the protection of the tenant from being deprived of shelter during the shortage of dwellings, and are a valid exercise of the police power, in view of the fact that the law, without enactment of statutes, has recognized a right to set up a defense to demand for oppressive rent as obtained by coercion and duress.

WAGNER, J. The motion for judgment upon a complaint founded upon ejectment and an answer pleading in content the remedies af

forded under the recent acts of the Legislature of this state known as the Housing Laws squarely presents for determination the validity of said acts in their constitutional aspect.

In brief, the new legislation herein sought to be construed and of consequence to the proceedings at bar is as follows:

(1) Chapter 942, which regulates holdover summary dispossess proceedings, allowing the same to be instituted for four reasons, namely: (a) Where the present holdover is objectionable; (b) where the owner being a natural person, seeks in good faith to recover the premises for his personal occupancy; (c) where the owner wishes to demolish the premises, with the intention of constructing a new building; (d) where the premises have been sold to a corporation formed under a co-operative ownership plan.

(2) Chapter 944 of the Laws of 1920, amending chapter 136 of the Laws of the same year, providing that it shall be a defense by a tenant in an action for rent:

"That such rent is unjust and unreasonable and that the agreement under which the same is sought to be recovered is oppressive."

(3) Chapter 945, dealing with summary dispossess proceedings for nonpayment of rent,, allowing the same to be brought where the rent is no greater than the amount for which the tenant was liable for the month preceding the default for which the proceeding is brought, and that in such a proceeding the reasonableness of the rent may be tested in substantially the same manner as in the action for rent which is regulated by chapter 944 of said laws.

(4) Chapter 947, which amends the Code of Civil Procedure by adding the following new section thereto in reference to the recovery of real property in an action in the Supreme Court.

The complaint on its face showing that the premises involved were used for dwelling purposes, and alleging no facts bringing the plaintiff within the exceptions specified in chapters 942 and 947, as well as the evident endeavor of plaintiff to avoid the inhibitions of section 944 admitted by plaintiff's counsel upon the argument, squarely presents the questions of alleged power and right. Does the deprivation of the landlord to the right to the remedy of ejectment under article 1 of title 1 of chapter 14 of the Code of Civil Procedure, covering actions to recover real property and the denial of any claim made for any rental that might be in excess of the reasonable value of