180 A.D. 54 | N.Y. App. Div. | 1917
An award has been made to the claimant, the remarried widow of Norman J. Wesley, and two minor children, by the State Industrial Commission, and the appellants urge
If we are right in this, then the jurisdictional fact of a contract of employment must be established by due process of law; by evidence which would be required to establish any other contractual relation. The question here is not whether there is evidence to show that Davis was an independent contractor, but whether Scott Serviss entered into a contract for the employment of Norman J. Wesley, and there is absolutely no competent evidence of any such contract. The Commission, in its conclusions of fact, finds that “ Norman J. Wesley had been placed at work painting by Edward B. Davis. Davis was to be paid a lump sum for painting the outside and inside of the house,” and in this the Commission accept as true the testimony of Mr. Serviss. It then continues, that' “ the daily wage of Norman J. Wesley would have to be deducted from this lump sum. * * * The lump sum was, in an economic sense, wages and not profits.
If we apply the rule of Matter of Rheinwald v. Builders’ Brick & Supply Co. (supra) in all its scope it does not go to the extent of holding that an employee to do a specific piece of work for a fixed sum is by reason of such employment the agent of the employer to hire such labor as he may see fit in carrying out the work. Such a contract, in the absence of other provisions, is limited to the personal service of the person employed; it is not a general agency to employ other persons to do the work, unless the person is, in fact, a. subcontractor.
The finding of fact that Davis became the agent of Serviss in the employment of Wesley is wholly without evidence to support it, and may not be sustained.
The award should be reversed and the claim dismissed.
All concurred.
Award reversed and claim dismissed.