264 A.D. 797 | N.Y. App. Div. | 1942
The employer, Frank Boekhout, and the alleged employer, Luther Hubright, have appealed from an award in claimant’s favor. On December 20, 1938, claimant, while engaged in the regular course of his employment, and while working for Boekhout cutting wood with a buzz-saw, sustained an injury which resulted in the loss of the right forearm at the junction of the lower and middle third and as a result has sustained a ninety per cent permanent loss of use of such arm. It is the contention of the State Industrial Board that Boekhout and Hubright were copartners. The Board found the claimant was not engaged in farming, but was engaged in a hazardous employment which was being conducted by Boekhout for pecuniary gain. The evidence sustains the award against Boekhout. The proof discloses that he was frequently engaged in activities of this character for pecuniary gain. There is no evidence to warrant a finding ' that Hubright was a partner of Boekhout, and Hubright was not an employer of claimant and no claim was ever filed against Hubright. The award of the [State] Industrial Board is affirmed, with costs to the State Industrial Board against the appellant Boekhout. The award against the appellant Hubright is reversed, with costs in his favor, and the claim as to him is dismissed. Hill, P. J., Crapser, Bliss, Heffeman and Foster, JJ., concur.