195 A.D. 613 | N.Y. App. Div. | 1921
Lead Opinion
This is an appeal from awards of compensation made by the State Industrial Commission February 25, 1920, and June 11, 1920. The employer needed a man to run one of its machines. An employee brought with him the claimant, who had a union card and representated himself to be an operative. The finding is that the employer informed “ the claimant that he would like to see whether or not the claimant knew how to operate a machine before he would hire him. The claimant undertook to prove his qualifications by operating a machine assigned to him by the said William Dorfman and before actually starting on any work on the machine, and while preparing the machine for the purpose of doing certain work assigned to bim by
It seems to me there was clearly no contract of employment. The respondents seek to sustain the award by cases where student brakemen had been put upon a train to learn the business and were injured while learning. But there the students were working with the understanding that they were to have compensation when they learned to do the work. Here the company did not undertake to teach the claimant; he claimed to be an operator and it was understood that before any question of employment, wages or work was discussed, he must demonstrate that he was an operator. The employment or non-employment depended upon the result of the test. • It cannot be said that while making the test he was an employee; he was simply trying to prove that he was fit to become an employee. I think the case is fairly within Brassard v. Delaware & Hudson Co. (186 App. Div. 647). And see Varney v. Ditmars (217 N. Y. 223, 228).
I favor a reversal and a dismissal of the claim on those authorities.
All concur, except Kiley, J., dissenting, with a memorandum.
Dissenting Opinion
It must be that some evidence in this record was overlooked. The employer’s report of injury contains the following: “Did accident happen on the premises? Yes. Away from the plant of employer? No. Full name of injured employee: Max Lederson. * * * Occupation when injured? Operator. Was injured employee doing his regular work? Just started. How long was injured person in your employment? Just started. Piece or time worker? Week. Working hours per day? Nine.” The injured employee in his claim for compensation says he was a time
Award reversed and claim dismissed.