177 A.D. 41 | N.Y. App. Div. | 1917
Lead Opinion
The employer, the Hartwood Club, was a membership corporation organized in 1893 to acquire and maintain tracts of land, ponds and streams of water within this State as a fishing and hunting preserve, and as a pleasure resort for its members; to sell and convey to its members suitable sites for the erection of cottages, with suitable outbuildings; to erect and maintain a clubhouse and other suitable buildings in order to fit the preserve for the purposes of residence, recreation and social enjoyment, “and todo all things necessary for and incidental to the purposes above set forth.” The constitution of the club provided for the sale and transfer of membership shares; for the forfeiture of membership rights; for the sale at public auction of the real and personal property of a forfeiting member, and for declaring dividends from any surplus revenues of the club.
The club became the owner of about 6,000 acres of land situated within the counties of Orange and Sullivan, in this State, a large part of which was covered with timber. From time to time the club sold from its woodland standing trees which were manufactured into lumber, and got out and sold railroad ties and telegraph poles. Trees also and down timber were cut by employees of the club and sold by it to the occupants of the cottages for firewood at a profit of about ten per cent above the cost of cutting. Cutting trees on this large tract was carried op. a good part of the year, the club keeping two or three men at work at it most of the time. The receipts from the sales of firewood and timber, ties and telegraph poles went into the treasury of the club, and were expended in the upkeep of the property, and in rendering unnecessary or in reducing assessments upon the members for the general main
In January, 1916, the husband of the claimant was an employee of the club as a general utility man and had been such for about four years. While engaged with two other club employees in cutting down trees he was killed by a falling tree which had been felled by one of his fellow-workmen. The purpose for which the trees then being cut were to be used was not shown. The secretary of the club testified that it was impossible to tell the destination of any particular tree; that the trees were both loaded on wagons and cut into cord wood, “and they order up so many cars, and nobody can tell where any particular tree went to. ” Other evidence also indicates that some of the shipments of logs and cordwood were made by rail.
The insurance policy issued by the carrier stated the business of the employer as follows: “Country club, club-house and other buildings, grounds, hunting, fishing and pleasure resort, including ice harvesting, forestry and logging operations. ” Forestry is defined by Webster as ‘ ‘ The art of forming or of cultivating forests; the management of growing timber.” It would appear from the evidence that cutting timber was at times necessary to keep the woods in shape. The maintenance of the property of the club was within the declared purposes of the organization. Perhaps these trees were “ going back ” and good management required that they should be cut and sold while yet of value. The presumption is that the claim comes within the provisions of the Workmen’s Compensation Law. (See Consol. Laws, chap. 67 [Laws of 1914, chap. 41], § 21.)
The State Industrial Commission found that on the day the deceased received his injuries he was employed as a lumberman by the Hartwood Club, a domestic corporation engaged in the operation of a country club, and in connection therewith in the business of ice harvesting, forestry and logging at Hartwood, N. Y., and that the club conducted such business for pecuniary gain. The Commission thereupon made an award in favor of the widow and child of the deceased. From such award this appeal has been taken.
The two grounds of appeal are: First, that deceased was not
As to the last ground urged for reversal, while the Hartwood Club was a membership corporation, and hence not created for business purposes, its right as a corporation or association to become an employer, and of the deceased to become an employee in a hazardous employment, is recognized by the Workmen’s Compensation Law (§ 3, subds. 3 and 4).
In the case of Kenny v. Union Railway Company (166 App.
In the case of People ex rel. Coney Island Jockey Club v. Sohmer (155 App. Div. 842; affd., 210 N. Y. 549) we held that where a corporation chose to avail itself of the advantages of having the title to land taken, held and conveyed by it, it was estopped to claim as against the State that it had no franchise authorizing it to deal in real property, and hence was not liable for the payment of franchise taxes.
In the case at bar the insurance carrier has received and retained the premiums upon a policy issued under the Workmen’s Compensation Law in protection of the Hartwood Club and of its employees while engaged in the business of forestry . and logging; that is, while engaged in a hazardous employment for pecuniary gain. (§ 2, group 14; § 3, subd. 5.) The insurance carrier cannot now be heard to say that it should not be called upon to make payment of the indemnity provided to be paid by the policy upon the ground that the club had no right to engage in those occupations for pecuniary gain.
It was held in the case of Milborne v. Royal Benefit Society (14 App. Div. 406) that where an incorporated benefit society assumes the risks and liabilities of a similar society and receives from a certificate holder of the latter all subsequent assessments necessary to keep his risk in force, it becomes liable to the certificate holder and is estopped from insisting that the contract by which it assumed the risks of the other society was ultra vires and that the certificate holder did not acquire any right as against it to enforce the obligation it had assumed.
It was held in the case of Usher v. New York Central & Hudson R. R. R. Co. (76 App. Div. 422; affd., 179 N. Y. 544) that where a division superintendent of the defendant acting beyond the scope of his authority, had made a contract with one of its employees who had been injured in the service of the company to employ him for life as a flagman at a certain cross
In view of the conclusions above reached I have not considered it necessary to discuss the question as to whether the Hartwood Club had in fact the legal right to do by virtue of its incorporation and incident to the exercise of its powers just what the Commission has found that in fact it did do.
The award of the State Industrial Commission should be affirmed.
All concurred, except Woodward, J., who dissented, in an opinion, in which Cochrane, J., concurred.
Since amd. by Laws of 1916, chap. 632.— [Rep.
Dissenting Opinion
I dissent on the ground that the Hartwood Club, a membership corporation, could not be an employer, and that Henry Uhl could not be an employee, under the definitions of the Workmen’s Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], § 3, as amd. by Laws of 1914, chap. 316).
The club in question had 6,000 acres of land and employed several men, just as an owner of a large farm with a wood lot might do, and the statute provides that it shall “not include farm laborers or domestic servants.” The employer was not by law authorized to carry on any “trade, business or occupation” for “pecuniary gain,” and it was not, therefore, within the law, any more than an individual would be who was maintaining a forest preserve for his personal pleasure, and who incidentally cut and sold timber from the tract in fitting and preserving it for the primary purpose. His employees would come within the classification of “farm laborers or domestic servants” rather than “employees” as defined in the Workmen’s Compensation Law.
Cochrane, J., concurred.
Award affirmed.
Since amd. by Laws of 1916, chap. 633.—[Rep.
