230 A.D. 216 | N.Y. App. Div. | 1930
The claimant received injuries April 2, 1928, resulting in the loss of the sight of Ms left eye. It has been found that these injuries were accidental and occurred in the course of Ms employment wMle claimant was engaged with a band spray pump in spraying a cMcken house on Ms employer’s premises. The employer claimed that he was engaged in farming and it has been so found by the Board, and that the claimant was employed as a farm laborer. It was apparently on tMs ground that the claim was disallowed.
The evidence does not sustain such a finding. The employer is evidently a retired business man, who owns a costly and pretentious estate situate in the city of Auburn on an old residence street near the center of the city. The residences on tMs street
Neither in the common acceptance of the term nor in the definition found in dictionaries, is the occupation of the employer as above described a farmer, nor is he engaged in the business of farming. (See 2 C. J. 989, and cases cited.) There is no tilling of the soil or engaging in an allied industry as an occupation either for profit or as a means of subsistence. There is no devotion of the property to agriculture. What little is done in the nature of agricultural work is either a pastime or is incidental to the maintenance of the estate. Even if by any stretch of imagination'we might say that a part of the business was farming, the employment in which the claimant was engaged did not come within the classification of a farm laborer. That implies that such a laborer is one who devotes his time to ordinary farm labor as a gainful occupation with some reasonable degree of regularity and continuity.
Section 3, subdivision 1, group 18 of the Workmen’s Compensation Law in substance provides that all other employments, in which there are engaged or employed four or more workmen or operatives regularly, come within the compensable provisions of the act unless such operatives are farm laborers or domestic servants.
The decision should be reversed and the matter remitted to the State Industrial Board, with costs to claimant to abide the event.
Davis, Whitmyer and Hill, JJ., concur; Van Kirk, P. J., and Hinman, J., dissent and vote to affirm on the ground that there is proof of small scale farming sufficient to support the finding of the Board that the claimant was employed as a farm laborer. ( Uhl v. Hartwood Club, 177 App. Div. 41; affd., 221 N. Y. 588.)
Decision reversed and matter remitted to the State Industrial Board, with costs to the claimant against the employer to abide the event.