Claim of De Rosa v. Expert Concrete Breakers

261 A.D. 857 | N.Y. App. Div. | 1941

Expert Concrete Breakers, employer, and its insurance carrier have appealed from an award of the State Industrial Board in favor of claimant. The only question presented is the identity of claimant’s employer. The D. E. H. Demolition Co was engaged in the business of house wreckers. That company had a subcontract with another concern which was engaged in erecting a post office in New York city. An agreement was made between the D. E. H. Demolition Co. and the Expert Concrete Breakers whereby the latter was to rent certain machinery to the former in connection with the performance of its contract. Expert Concrete Breakers employed a number of skilled workmen; among them claimant. The D. E. H. Demolition Co. desired the services of those workmen. An arrangement was made between the two concerns under which the skilled workmen were employed by the Demolition Company. While claimant was so employed he was injured. The D. E. H. Demolition Co. paid the skilled workmen and also their social security obligations. The payroll of the D. E. H. Demolition Co., on which the name of claimant appears, was audited by its insurance company and that carrier collected a premium on claimant’s wages. Claimant was injured while working for the D. E. H. Demolition Co. The latter company the day following the accident made an employer’s first report of injury and later notified the Industrial Commissioner that it had commenced the payment of compensation to claimant. While claimant was employed by the D. E. H. Demolition Co. he received no wages from Expert Concrete Breakers, and the carrier of the latter company received no premium on his wages. Notwithstanding these facts, the State Industrial Board made an award against Expert Concrete Breakers and its insurance carrier, and exonerated the D. E. H. Demolition Co. and its carrier from responsibility. Award of the State Industrial Board reversed, with costs in favor of Expert Concrete Breakers, and the matter remitted to the Board for its reconsideration of the question as to who was claimant’s employer, and whether or not the D. E. H. Demolition Co. or the Expert Concrete Breakers, or both, were claimant’s employers. Hill, P. J., Bliss, HefEeman and Schenck, JJ., concur; Crapser, J., dissents and votes to reverse the award and to remit the claim to the State Industrial Board for the purpose of making an award against the Expert Concrete Breakers and its carrier, and the D. E. H. Demolition Co. and its carrier, in accordance with the law as laid down in Matter of Schweitzer v. Thompson & Norris Co. (229 N. Y. 97).