257 A.D. 1090 | N.Y. App. Div. | 1939
Appeal by claimant from a decision of the State Industrial Board. The facts are undisputed. Claimant was employed by some thirty property owners as night watchman. His duties varied somewhat among his employers but with the exception of the Dunkirk Printing Company, the employer here, his duties were those usual to a watchman. He had special duties to perform in connection with his employment by the Dunkirk Printing Company. Not only was he charged with the responsibility of watching the premises, but he was required to go into the printing company building in the early morning and start the teletype machines. This required him to remain in the building each morning from fifteen to twenty minutes. For these services he had been paid by the Dunkirk Printing Company for upwards of a year. On May 23, 1938, he entered the premises, started the teletype machines and observed their operation for fifteen or twenty minutes. Thereafter, as he proceeded to leave the building, he fell on a flight of stairs, injuring his foot and ankle. The printing company reported the case to the insurer, which denied liability. The sole question presented here is whether claimant was an employee and entitled to compensation, or an independent contractor. The State Industrial Board found that claimant was not an employee of the Dunkirk Printing Company but was an independent contractor, and disallowed his claim for compensation. This decision should not be sustained. (Matter of Moochler v. Herrick & Son, 272 N. Y. 545, affg. 247 App. Div. 841.) Decision reversed, and matter remitted to the State Industrial Board, with costs to the claimant against the employer and the insurance carrier. Hill, P. J., Bliss, Heffeman and Schenek, JJ., concur; Crapser, J., dissents, and votes to affirm the decision on the ground that the claimant was an independent contractor and not an employee.
