183 A.D. 818 | N.Y. App. Div. | 1918
The employer, appellant, a road contractor, was building a State road near Sandy Creek, Oswego county, N. Y. He resided at Syracuse, and from time to time, at Syracuse, he bought real estate where the buildings were run down, improved them, and when he found a favorable opportunity to sell them at a profit, disposed of them. The year before the accident he bought a one-family house and deeded it to his wife, making a payment down, the balance secured by a purchase-money mortgage. He overhauled the house and made it into a three-family house. The apartment on the lower floor was fitted up for and was occupied by himself and wife; the apartments on the upper floors were rented and she had the rent.
The injured employee was a paperhanger and painter and had a small shop back of his house. He had one or more employees and carried compensation insurance upon them. He kept an automobile, which was used principally by him in his business in carrying his paint, ladders, paper and other material and workmen. He took contracts for work, or
The insurer contended before the Commission, and contends here, that the insurance related solely to the work upon the road in connection with the Sandy Creek job, and did not in any way cover the work upon this house at Syracuse. Attached to the policy is a declaration which furnishes the specifications and makes the application of the policy definite. Item 3 of the declaration states the “location of the factories, shops, yards, buildings, premises or other work places of the employer, by town or city, with street and number ” as “ Sandy Creek, Oswego County, N. Y.” The “ kind of trade, business, profession or occupation (Manual Classification)” is stated as “ State or Municipal road or street making, including culverts not exceeding ten feet span. All operations except quarrying and blasting.” Under the heading “ Location of all places where Operations are to be conducted ” we find: “ Sandy Creek, Oswego County, New York.”
The respondent was an employer of labor, and his employees were protected by the insurance obtained by him. The employment was entirely casual in its nature and, within Matter of Rheinwald v. Builders’ Brick & Supply Co. (223 N. Y. 572), must be considered as a special contractor and not an employee of the defendant. He worked for the defendant by the job and by the hour, in casual employments, and was not a regular employee.
The work being performed at the time was in the parlor, which was being fitted for a residence for the family. Apparently the house would be sold if a satisfactory price was given for it. That perhaps is true of most residences, but the work done was not with reference to fitting the house for sale, but with reference to making it attractive and useful for the family as a residence, and the putting of the little plaster on the rough spot in the ceding was not being done in preparing the premises for sale, but was a mere incident to the kalsomining work which usually is done upon ordinary residential property for the satisfaction of the occupant. The house belonged to the wife of the appellant, the alleged employer; the mason work, the carpenter work, the painting, and all of the work in overhauling and repairing it, had been done by independent contractors, except the little job of kalsomining, which was too small and indefinite to be done in that way. It cannot be said that the appellant, with reference to this house, was engaged in “ construction, repair and demo'lition of buildings,” or .in any other employment declared
The award should be reversed and the claim dismissed.
All concurred, except Cochrane, J., dissenting.
Award reversed and claim dismissed.