use of it, the loss of the use of a hand does not involve the actual loss of the hand as a physical member-a distinction the law recognizes and observes. The question here was whether the first or second rate of compensation should be awarded. The uncontradicted evidence established that the hand was not lost, and that the first rate should be awarded.

The order appealed from should be reversed, and the original award of 1081⁄2 weeks reinstated and affirmed, with costs to the appellants against the commission.

HISCOCK, CHASE, and CUDDEBACK, JJ., concur. HOGAN and CARDOZO, JJ., dissent. WILLARD BARTLETT, C. J., not voting.

Order reversed, etc.

(219 N. Y 326)

KANZAR v. ACORN MFG. CO.

In re ETNA LIFE INS. CO.

The record contains the notice to the employer of the injury, made pursuant to section 18 of the law, the report to the commission of the employer of the injury, made pursuant to section 111, the claim for compensation presented to the commission, pursuant to section 20, the reports to the commission of two physicians attending the claimant on account of his injuries, and the report to the commission of the physician making the medical examination, pursuant to section 19. Upon the hearing by the commission, pursuant to section 20, no witness was present and called. There is not in the record any evi

(Court of Appeals of New York. Nov. 28, 1916.) dence supporting the finding of the commis

sion that the claimant had lost the use of MASTER AND SERVANT 417(5) INJURIES his left hand. The brief of the respondent TO SERVANT WORKMEN'S COMPENSATION LAW-PROCEEDINGS REVIEW-PRESUMP- states:

Workmen's Compensation Law (Consol. Laws, c. 67) § 21, providing that in any proceeding for the enforcement of a claim for compensation under the chapter it will be presumed, in absence of substantial evidence to the contrary, that the claim is within the provisions of the chapter, etc., does not create a presumption to support a finding of the Industrial Commission based on medical reports that claimant who suffered injuries resulting in loss of portions of fingers of a hand had lost the use of the hand, where there was no evidence thereof.

"In this case there was no evidence taken. The finding is based upon the reports of the employer, the employé, and the medical reports, so that there is a presumption under section 21 to sustain the finding of fact of the commission that the claimant lost the use of his left hand."

Section 21 (Consol. Laws, c. 67) is:

"In any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of substantial evidence to the contrary:

"1. That the claim comes within the provision

[Ed. Note.-For other cases, see Master and of this chapter; Servant, Dec. Dig. 417(5).]

Hogan and Cardozo, JJ., dissenting.

"2. That sufficient notice thereof was given; "3. That the injury was not occasioned by the willful intention of the injured employé to

Appeal from Supreme Court, Appellate Di- bring about the injury or death of himself or of vision, Third Department.

another;

"4. That the injury did not result solely from the intoxication of the injured employé while on duty."

Proceedings under the Workmen's Compensation Law by Michael Kanzar to obtain compensation for personal injuries, opposed Any presumption thereby created has, manby the Acorn Manufacturing Company, em- ifestly, no relation to the question here, which ployer, and the Etna Life Insurance Com- is, is there any evidence that the claim, pany, insurance carrier. Compensation was which is concededly and unquestionably withawarded for the loss of the use of a hand, in the provisions of the chapter, was entitled and the award affirmed by the Appellate Di-to the rate of compensation awarded. vision (158 N. Y. Supp. 1119), and the employer and insurance carrier appeal. Modified and affirmed.

Merwyn H. Nellis, of Albany, for appellants. Egburt E. Woodbury, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

COLLIN, J. This appeal was argued with that in Matter of Grammici v. Zinn, 219 N. Y. 114 N. E. 397, which is decided herewith. The claimant here, as in the Grammici Case, was awarded the compensation for the

Upon the authority of Matter of Grammici v. Zinn, 219 N. Y. 322, 114 N. E. 397, the order should be modified by reducing the award to 1082 weeks, and as so modified affirmed, with costs to the appellants against the commission.

HISCOCK, CHASE, and CUDDEBACK, JJ., concur. HOGAN and CARDOZO, JJ., dissent. WILLARD BARTLETT, C. J., not voting.

Ordered accordingly.

(219 N. Y. 343)
HAMILTON, County Treasurer, v. ERIE
R. CO.

(Court of Appeals of New York. Nov. 28,
1916.)

1. RAILROADS 307(3)-CROSSING ACCIDENTS -WARNING SIGNALS.

Where a fast train, not sounding its bell or whistle, collided with intestate in a wagon on a misty morning before the sun had risen, the crossing being unprotected except for an automatic signal bell which was out of order and was ringing continuously, and a passing freight train made considerable noise, the railroad company was negligent.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 974; Dec. Dig. 307(3).]

UTOR OR ADMINISTRATOR.

2. RAILROADS 328(1)—CROSSING ACCIDENTS In action for wrongful death by negligence CONTRIBUTORY NEGLIGENCE DUTY TO under Code Civ. Proc. §§ 1902-1905, the executor LOOK AND LISTEN. or administrator of decedent is a mere nominal Where on a dark morning the view was so party without any interest in the damages, holdobstructed that when deceased was crossing the ing them, when recovered, as trustee or agent for track in a wagon his horses were on the track at the beneficiaries; the claim of the beneficiaries the time he could first have seen the engine, and being of the same character as claims for injuthe train approached the crossing without sound-ries to the property of claimants. ing a bell or whistle at a high rate of speed,

9. AMBASSADORS AND CONSULS

while a passing freight train, and also an auto- [Ed. Note.-For other cases, see Death, Cent. matic crossing signal bell, out of order and ring- Dig. § 38; Dec. Dig. 31(3).] ing continuously, were making considerable noise, deceased was free from contributory negligence as a matter of law, since reasonable care by deceased in looking and listening would not have enabled him to detect the approach of the engine in time to escape collision.

Under the treaty in force in 1909 between the United States and Russia, containing the most favored nation clause, the powers of the Russian consul and vice consul in the matter of settling with and releasing a railroad for damages arising from the death of a Russian subject killed by it, were equal to those given to consular representatives of any other nation by treaty. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 323, 384-392; Dec. Dig. 87.]

4. ALIENS 2-PRESUMPTION.

The facts that a man was an alien, that at the age of 20 he married, and through 12 succeeding years resided in Russia before he came to the United States 2 years before his death, that his family continued until his death to reside in Russia and receive there their support from him, and were aliens created a presumption that he was a citizen of Russia, since the relation is presumed to have continued until a change of citizenship is proved.

5-RIGHTS. rest on international law as well as on treaty The rights of consuls and consular officials stipulations.

[Ed. Note.-For other cases, see Ambassadors and Consuls, Cent. Dig. §§ 12-15; Dec. Dig. 5.]

10. AMBASSADORS and CONSULS 5·
TUS.

STA

International law regards consuls and consular officials as mercantile agents of the government appointing them, authorized to protect the commercial interests of its citizens or subjects in the country to which they are accredited, and clothed only with authority for commercial purposes.

[Ed. Note.-For other cases, see Ambassadors and Consuls, Cent. Dig. §§ 12-15; Dec. Dig. 5.]

11. AMBASSADORS AND CONSULS

TIES.

5

DU

The general law of nations does not sustain as valid the settlement by a consul general with a railroad for its negligent killing within his con

[Ed. Note.-For other cases, see Aliens, Cent. sular jurisdiction of a countryman of the conDig. §§ 2, 3; Dec. Dig.

5. EVIDENCE

2.]

sul.

[Ed. Note.-For other cases, see Ambassadors and Consuls, Cent. Dig. §§ 12-15; Dec. Dig. 5.]

13. TREATIES 11-RIGHTS OF LITIGANT.

Under Const. U. S. art. 6, declaring a valid treaty the supreme law of the land, where a treaty affects the rights of litigants, it binds those rights and is as much to be regarded by the court as an act of Congress, being paramount to the Constitution and statutes of the state, but not to acts of Congress.

[Ed. Note.-For other cases, see Treaties, Cent. Dig. § 11; Dec. Dig. 11.]

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

Appeal from Supreme Court, Appellate could have first seen it or the train. While Division, First Department.

the evidence in regard to the view of the apAction by Walter G. Hamilton, county proaching train practicable to the intestate treasurer, etc., against the Erie Railroad was in direct contradiction, it supports as Company. From a judgment of the Appellate facts those statements. Our decision in Division (170 App. Div. 901, 154 N. Y. Supp. Parsons v. Syracuse, B. & N. Y. R. R. Co., 1125), affirming a judgment for plaintiff, di- 205 N. Y. 226, 228, 98 N. E. 331, is an aurected by the court at Trial Term, the de- thority upholding the trial court in finding fendant appeals by permission. Affirmed. that the intestate was free from contributory

In that case Judge Hiscock, | treaty with the United States, and specificalwriting for the court, after stating that the ly refers us to the provision of the then existcase was submitted to the jury upon two theories, the first of which was, it was the duty of the intestate to "look and listen only in the event that the jury should find from the evidence in this case that it would have availed him, had he looked and listened," said:

"The two contracting parties shall have the lib-sided and married, and through the sucerty of having, in their respective ports, consuls, vice consuls, agents and commissaries of their own appointment, who shall enjoy the same priv; ileges and powers as those of the most favored nations."

65 Atl. 657, 8 L. R. A. (N. S.) 1245. More-juries to the manifold varieties of property over, the acts of the Russian consul general of claimants. under the treaty created the presumption [9-12] The rights of consuls and consular that the intestate was a citizen or subject officials rest on international law as well as of Russia, because otherwise those acts on treaty stipulations. International law would have been nugatory and mischievous. regards them as mercantile agents of the govThe acts of a public officer which presuppose ernment appointing them, authorized to prothe existence of other acts or conditions to tect the commercial interests of its citizens make them legally operative are presumptive or subjects in the country to which they are proofs of the latter. Bank of the United accredited and clothed only with authority States v. Dandridge, 12 Wheat. 64, 6 L. Ed. for commercial purposes; to conserve and 552; Cincinnati, New Orleans & Texas Pac. guard the property within their territorial R. Co. v. Rankin, 241 U. S. 319, 327, 36 Sup. | jurisdiction of their countrymen dying thereCt. 555, 60 L. Ed. 1022; Swarthout v. Ra-in is important among their rights and dunier, 143 N. Y. 499, 504, 38 N. E. 726; Pringle ties. The Anne, 3 Wheat. 435, 4 L. Ed. 428; v. Woolworth, 90 N. Y. 502. "The general Seidel v. Peschkaw, 27 N. J. Law, 427; Matpresumption is that no official or person act-ter of D'Adamo, 212 N. Y. 214, 106 N. E. ing under an oath of office will do anything 81, L. R. A. 1915D, 373. While it vests them contrary to his official duty, or omit anything with the right to interpose claims for the which his official duty requires to be done." restitution of property belonging to the subMatter of Marcellus, 165 N. Y. 70, 77, 58 N.jects of their own country, I have found no E. 796, 798. We conclude from the proofs that the intestate was, at the time of his death, a citizen of Russia. Concededly, he died within the territorial jurisdiction of the consul general.

[6] We turn next to the question, Did the consul general have the right to settle the cause of action belonging to the widow and next of kin? The alienage of the beneficiaries of the cause of action does not affect their rights under the statute (Alfson v. Bush Co., 182 N. Y. 393, 75 N. E. 230, 108 Am. St. Rep. 815), and we will assume for the purposes of this case that the widow and children of the intestate, who under the statute (Code of Civil Procedure, § 1903) constituted the beneficiaries, had the right (the infants being legally represented) to settle the cause of action at any time prior to the issuance of the letters of administration on March 1, 1911. The question presented is, Did the consul general, as such, and without authority from the beneficiaries, have that right? [7, 8] At the outset it should be comprehended that under our statute the cause of action is created by the statute and is original and not derivative. It is not a part of and has no relation with the estate of the decedent. The damages are allowed, not for an injury to his estate, but for an injury, through the loss of him, to the estate of the beneficiaries. The executor or administrator of the decedent is a mere nominal party, without any interest in the damages, holding them, when recovered, in the capacity of a trustee or agent for the beneficiaries. Hegerich v. Keddie, 99 N. Y. 258, 1 N. E. 787, 52 Am. Rep. 25; Matter of Meekin v. Brooklyn Heights R. R. Co., 164 N. Y. 145, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635; Kelliher v. New York Central & H. R. R. R. Co., 212 N. Y. 207, 105 N. E. 824, L. R. A. 1915E, 1178. The claim of the beneficiaries of such a cause of action, in its inherent nature and source, is of the same quality and character as the large class of claims for in

rule of international law or judicial decision indicating that it authorizes or permits them to dispose of, control, or convert into another form the uninvaded and secure property of their living countrymen. The decision and opinion in The Bello Corrunes, 6 Wheat. 152, 168, 5 L. Ed. 229, upholds the contrary conclusion. It is clear, I think, that the general law of nations does not sustain as valid the settlement with the appellant of the consul general, and this conclusion is assured by the fact that the consul for the appellant does not invoke here that law. Nor has he brought to our attention any law of Russia or of this country supplementing, in this respect, international law. The treaty between the United States and Russia, in conjunction with that between the United States and Spain, of which we have already spoken, is the foundation of his claim and argument.

[13, 14] The federal Constitution declares a valid treaty the supreme law of the land. Article 6. Where a treaty affects the rights of litigants, it binds those rights and is as much to be regarded by the court as an act of Congress. United States v. Schooner Peggy, 1 Cranch, 103, 2 L. Ed. 49; Whitney v. Robertson, 124 U. S. 190, 8 Sup. Ct. 456. 31 L. Ed. 386; Maiorano v. Baltimore & Ohio R. R. Co., 213 U. S. 268, 29 Sup. Ct. 424, 53 L. Ed. 792. It is paramount to the Constitution and statutes of the state (Ware v. Hylton, 3 Dall. 199, 237, 1 L. Ed. 568), but not to acts of Congress (Head Money Cases, 112 U. S. 580, 5 Sup. Ct. 247, 28 L. Ed. 789). Its application to any case and its construction, if construction is needed, are, as with any other law, questions for the court.

The particular language of the Spanish treaty which, the appellant asserts, gave the consul general the right to settle the claim, is that giving to consular officers "the right of representing the absent, unknown or minor heirs, next of kin or legal representatives of the citizens or subjects of their country, who shall die within their consular jurisdictions;