Claim of Keefer v. Boyd & Whipple

257 A.D. 879 | N.Y. App. Div. | 1939

Appeal from a decision of the State Industrial Board, noticed November 15, 1938, reversing a decision of a referee and disallowing the appellant’s claim for compensation. The claim was disallowed on the ground that the claimant was an independent contractor and not an employee. The claimant agreed to do the job of bricking up two windows. He furnished his own scaffolding and tools and all equipment except one ladder. He regulated his own hours of work with the exception that the job was to be done on a Thursday when a doctor, whose office was next door, would be out of his office. It made no difference at what hour claimant did the work. The finding that he was an independent contractor and not an employee is amply sustained by the evidence. Decision affirmed. All concur, except Hill, P. J., and Heffeman, J., who dissent upon the following ground: Claimant was a general handy man, carpenter, mason, and paper hanger. He had no shop or headquarters at which he worked. He was employed to brick up two windows in the wall of the employer’s garage. The wages paid for previous repair jobs had been included in the payroll of the employer, upon which a premium was computed on the compensation policy. One of the employers testified that under the terms of employment he could have discharged claimant at any time, and before the work was completed. The employer had elected to place the claimant under compensation.