the liability is not. People ex rel. Dusenbury v. Speir, 77 N. Y. 144; Matter of Post v. Burger & Gohlke, supra, 216 N. Y. 549, 111 N. E. 351, Ann. Cas. 1916B, 158; Ralli v. Troop, 157 U. S. 386, 396, 15 Sup. Ct. 657, 39 L. Ed. 742; Angell, Recovery under Workmen's Compensation Law for Injury Abroad, 31 Harvard Law Review, p. 619. If the parties were to agree that it should not attach, the courts would disregard their agreement. A duty is imposed by law on employers conducting a hazardous employment in New York to insure their workmen against injury, and the insurance covers injuries incidental to that employment though suffered in another state. The contract creates the relation to which the law attaches the duty, and the same law which imposes the duty defines its orbit and its measure.

A different problem is before us here. The duty to insure, when read into the contract, is as broad as the statute, but no broader. It comes into being only when the statute intends that it shall arise, and comes to a close when the statute intends that it shall end. This contract of employment, when made, was not subject to the act, because the act had not been passed. It did not become subject to the act afterwards, because the plant had then been moved, and there was no employment to be regulated. That the employment had its origin in this state is not decisive. Matter of Gardiner v. Horseheads Const. Co., 171 App. Div. 66, 156 N. Y. Supp. 899. That casual circumstances did not subject the parties, regardless of changed conditions of performance, to the continuing burden of local legislation. The duty to insure does not outlast the existence within our borders of the business or relation which calls it into life.

The order should be reversed and the claim dismissed, with costs against the State Industrial Commission in the Appellate Division and in this court.

Hiscock, C. J., and Chase, Collin, Cuddeback, Hogan, and McLaughlin, JJ., concur.

Order reversed, etc.

COURT OF APPEALS OF NEW YORK.

IN RE WORKMEN'S COMPENSATION FUND.

SELF-INSURERS' ASS'N ET AL.

V.

STATE INDUSTRIAL COMMISSION.*

1. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACTS-CERTIFIED QUESTIONS-POWERS OF APPELLATE

DIVISION.

Where industrial commission certified to Appellate Division a question concerning its powers, asking an advisory opinion thereon, the Appellate Division was without power to order anything to be done or to be forborne, but could only answer the question.

(For other cases, see Master and Servant, Dec. Dig. § 417[2].)

2. MASTER AND SERVANT — WORKMEN'S COMPENSATION ACTS CERTIFIED QUESTIONS-APPELLATE JURISDICTION.

The Court of Appeals has no jurisdiction to entertain an appeal from the Appellate Division on a question certified by the industrial board under Workmen's Compensation Act (Consol. Laws, c. 67) § 23, since the jurisdiction of the Court of Appeals is to be exercised as in civil actions, which, under Code Civ. Proc. § 190, is limited to cases in which there has been a decision by the Appellate Division.

(For other cases, see Master and Servant, Dec. Dig. § 396.)

3. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT-ADVISORY OPINIONS.

The Legislature, by Workmen's Compensation Act, § 23, authorizing industrial board to certify questions to Appellate Division, did not attempt to authorize merely advisory opinions, but questions certified under the act must be incidental to a pending controversy between litigants.

(For other cases, see Master and Servant, Dec. Dig. § 417[2].)

Appeal from Supreme Court, Appellate Division, Third Department. The State Industrial Commission certified a question in Re Workmen's Compensation Fund to the Appellate Division, and the Self-Insurers' Association and the New York Central Railroad Company were permitted to appear and file briefs. From the order of the Appellate Division (168 N. Y. Supp. 1130), answering the question affirmatively, the association and the railroad appeal. Appeal dismissed.

R. A. Mansfield Hobbs, of New York City, Robert E. Whalen, of Allbany, and George A. Blauvelt, of New York City, for appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent.

CARDOZO, J. On July 2, 1917, one of the members of the state industrial commission proposed to that body a resolution that * Decision rendered, May 28, 1918. 119 N. E. Rep. 1027.

Vol. II-Comp. 36.

every mutual compensation insurance company and self-insurer should pay into the state fund, under section 27 of the Workmen's Compensation Law, as amended by chapter 705 of the Laws of 1917, the present value of death benefits under every award against such insurance carriers for deaths occurring between July 1, 1914, and July 1, 1917, inclusive. The resolution was neither adopted nor rejected. All that the commission did was to recite that there was doubt about its power, and to certify to the Appellate Division a question of law to be answered by that court. The following is the question certified:

"Has the state industrial commission power and authority under the provisions of section 27 of the Workmen's Compensation Law, as amended by chapter 705 of the Laws of 1917, to require the payment into the state fund, in accordance with the provisions of said section, of the present value of unpaid death benefits in cases in which awards were made prior to July 1, 1917?"

[1]At the Appellate Division the Self-Insurers' Association, an unincorporated body of insurers, was allowed to appear and file a brief. Like permission was granted to the New York Central Railroad Company. Till then the Attorney General stood before the court alone. Even afterwards there were no adverse parties. There were merely friends of the court striving to enlighten its judgment. The Appellate division did not order anything to be done or forborne. It could not. It merely answered a question. Its order was that the question propounded be answered in the affirmative. It thereupon granted leave to the interveners to appeal to this court. The same question that was certified to the Appellate Division has been certified to us.

[2] The determination of such an appeal is not within our jurisdiction. The practice is said to be justified under section 23 of the act. That section authorizes an appeal to the Appellate Division from an award or decision of the commission. It also provides that:

"The commission may also, in its discretion, certify to such Appellate Division of the Supreme Court, questions of law involved in its decision."

Appeals may be taken to this court subject to the same limitations as in civil actions. Matter of Harnett v. Steen Co., 216 N. Y. 101, 110 N. E. 170.

Nothing in these provisions sustains the practice followed. The commission made no decision. There was no case or controversy before it. No summons to attend a hearing had been given to the insurance carriers. No carrier had appeared. The members of the commission, debating their powers among themselves, asked and obtained the advisory opinion of a court. Without notice to the carriers to be affected by their action, they fortified themselves in advance by judicial instruction. In such cir

cumstances the answer of the appellate division bound no one and settled nothing. We do not know that the commission will ever adopt the proposed resolution. If it does, and so notifies the carriers, the legality of its action will remain open for contest in the courts. No advice that may now be given in response to a request for light and guidance can prejudge the issue or control the outcome.

[3] In that situation our duty is not-doubtful. The function. of the courts is to determine controversies between litigants. Interstate Commerce Commission v. Brimson, 154 U. S. 447, 475, 14 Sup. Ct. 1125, 38 L. Ed. 1047; Osborn v. Bank of U. S., 9 Wheat. 738, 819, 6 L. Ed. 204; Mills v. Green, 159 U. S. 651, 16 Sup. Ct. 132, 40 L. Ed. 293; Marye v. Parsons, 114 U. S. 325, 330, 5 Sup. Ct. 962, 29 L. Ed. 205; Am. Book Co. v. Kansas, 193 U. S. 49, 24 Sup. Ct. 394, 48 L. Ed. 613. They do not give advisory opinions. The giving of such opinions is not the exercise of the judicial function. Thayer, Cases on Constitutional Law, vol. 1, p. 175; American Doctrine of Const. Law, 7 Harvard Law Review, 153. It is true that in England the custom of the Constitution makes the judges, of the high court the assistants of the Lords, and requires them, upon the demand of the Lords, to give "consulative" opinions. Thayer, supra; Opinion of the Justices, 126 Mass. 557, 562. But that custom is a survival of the days when the judges were members of the great council of the realm. Thayer, supra; T. E. May, Parliamentary Practice (12th Ed.) pp. 55, 56, 182; Anson, Law and Custom of the Constitution, pp. 45, 52, 449. In the United States no such duty attaches to the judicial office in the absence of express provision. of the Constitution. Dinan v. Swig, 223 Mass. 516, 519, 112 N. E. 91; Opinion of Court, 62 N. H. 704, 706; Rice v. Austin, 19 Minn. 103 (Gil. 74) 18 Am. Rep. 330. Even in those states, e. g., Massachusetts, Maine, and New Hampshire, where such provisions are found, the opinions thus given have not the quality of judicial authority. The judges then act, "not as a court, but as the constitutional advisers of the other departments." Opinion of Justices, 126 Mass. 557, 566; Laughlin v. Portland, 111 Me. 486, 497, 90 Atl. 318, 51 L. R. A. (N. S.) 1143, Ann. Cas. 1916C, 734.

[4, 5] In this state the Legislature is without power to charge the courts with the performance of nonjudicial duties. Matter of Davies, 168 N. Y. 89, 61 N. E. 118, 56 L. R. A. 855. It has not attempted to do so by this statute. The questions to be certified under section 23 of the act must be incidental to a pending controversy with adverse parties litigant. Those limitations apply to the Appellate Division. Even more explicit are the restrictions. in this court. Our jurisdiction is to be exercised subject to the same limitations as in civil actions. Workmen's Comp. Act, § 23; Code Civ. Pro. § 190. The order under review is not one which finally determines a special proceeding Matter of Droege, 197 N.

Y. 44, 50, 90 N. E. 340; Matter of Jones, 181 N. Y. 389, 74 N. E. 226. It is not an intermediate order in a special proceeding. There has been no judicial proceeding at all. There has been a tender of advice which may be accepted or rejected.

The record now before us supplies a pointed illustration of the need that the judicial function be kept within its ancient bounds. Some of the arguments adressed to us in criticism of the resolution apply to all awards for death benefits; others to awards made before June, 1916; others to awards where one of the dependents is a widow. It is thus conceivable that the proposed resolution may be valid as to some carriers and invalid as to others. We are asked by an omnibus answer to an omnibus question to adjudge the rights of all. That is not the way in which a system of case law develops. We deal with the particular instance; and we wait till it arises.

The appeal must be dismissed without costs to either party. Hiscock, C. J., and Collin, Cudeback, Pound, Crane, and Andrews, JJ., concur.

Appeal dismissed.

SUPREME COURT OF NEW YORK.

APPELLATE DIVISION, FIRST DEPARTMENT.

TRAVELERS' INS. CO.

ย.

LOUIS PADULA CO., INC.*

MASTER AND SERVANT WORKMEN'S COMPENSATION ACT-ACTIONS FOR WRONGFUL DEATH-PARTIES ENTITLED TO SUE.

Where an insurance carrier, liable for the payment of a death claim under the Workmen's Compensation Act (Consol. Laws, c. 67) to the next of kin, has taken an assignment from them of the cause of action against the party causing the death, it cannot sue thereon; such right of action being in the executor or administrator by the direct provisions of Code Civ. Proc. § 1902, unaffected by Workmen's Compensation Act, § 29, providing for prosectuion or compromise by the commission of causes of action assigned to the state.

(For other cases, see Master and Servant, Dec. Dig. § 389.)

Appeal from Special Term, New York County.

Action by the Travelers' Insurance Company against the Louis Padula Company, Incorporated, to recover for the death of Adolph Littman, an employee of the Brandt & Silverstein Iron Works. From an interlocutory judgment overruling a demurrer to plaintiff's complaint, defendant appeals. Reversed, with directions.

*Decision rendered, June 7, 1918. 170 N. Y. Supp. 869.