180 A.D. 111 | N.Y. App. Div. | 1917
The claimant was supervising the construction of a part of the subway in New York city, which work was being performed by Booth & Flinn, Limited, contractors. His work was principally in the tunnel of the subway, except at the end of the month, when he worked on estimates. He was directed by the engineer in charge to survey all the supports under the railroad tracks, underneath the decking in the subway, at Whitehall and Stone streets, and while so engaged on July 14, 1916, he became very dirty and his clothes became covered with dirt and filth, which necessitated their being thrown away. He left the subway in this condition about eleven-fifteen o’clock a. m. and it was his duty then to repair to the engineer’s field office, about a block away, and make up the estimates, but apparently he .could not go in his then condition; it was necessary for him to remove the filthy garments and the filth from his person. In most such offices a shower bath is provided for the men similarly engaged; no such regular bath was provided here, but two or three days before the accident the claimant and his assistant engineer had improvised a shower bath at the office. This bath was provided by the engineer in charge. The claimant wanted to take his bath in the boiler room, but the engineer directed him to use the shower bath. While standing on a marble slab claimant’s foot slipped and he received the injuries complained of. It is urged that the injuries did not arise out of and in the course of his employment.
The Public Service Commission is composed of State officials, but upon those State officials is devolved by law the duty of superintending and directing the building of the subway for the city of New York. (Laws of 1907, chap. 429, as revised and amd. by Laws of 1910, chap. 480, being Consol. Laws, chap. 48, and Laws of 1891, chap. 4, as amd.) The field offices were used by the Commission with reference to the subway work, and the claimant was employed by the Commission solely with reference to that work and he was paid for his work by the city upon certificates of the Commission, or its representatives. The city of New York cannot perform the physical acts of building the subway; it must do it through contractors or employees, and its relations with the contractors and employees must be sustained by some official or representative of the city, and it is
We conclude, therefore, that the city of New York, under the statutes, was engaged in the hazardous employment of subway construction under group 13 of section 2 of the Workmen’s Compensation Law. The award should, therefore, be affirmed.
Award unanimously affirmed.