119 N.E. 242 | NY | 1918
In 1914 the Diamond Mills Paper Company had a plant at Saugerties, New York. It needed another engine, and bought one from the Erie City Iron Works. The manufacturer agreed to furnish an engineer "to superintend installation." Charles McNally, the claimant, undertook to move the engine from the railroad to the plant for $225. After that contract had been fully performed, he was asked by one of the officers of the paper mill to assist in the work of installation. He was to be paid by day's labor. He brought with him two of his own hired men, and his own blocking, rigging and jacks. Two of the permanent employees of the mill, and two others hired for the job, worked with him. In charge of them all was the engineer. In the course of the work the claimant hurt his arm. The industrial commission made an award. The Appellate Division reversed, and dismissed the claim.
We think there is evidence to sustain the finding that the claimant when injured was an employee, and not an independent contractor. That he was a contractor while engaged in transporting the engine from the railroad to the mill may be conceded. But when that contract had been performed, he assumed a new relation. He was then employed by the day to work as a laborer with others. He was not in control of the job; he had no power of superintendence or direction; he had no other rank than the regular employees of the mill who were with him; he took his orders from the engineer whom the mill had placed in charge. In this situation, the distinctive *86
tokens of the independent contractor are lacking. The claimant for the purposes of this job was an employee, and nothing more. What he may have been at other times and for other purposes does not concern us. It is true that his employment was temporary and casual, but that is not enough to exclude him from the protection of the statute (Matter of De Noyer v. Cavanaugh,
The Appellate Division assumed that the claimant was an employee, but held that the award was condemned by our decision in Matter of Bargey v. Massaro Macaroni Co. (
The order of the Appellate Division should be reversed, and the award affirmed, with costs in the Appellate Division and in this court.
HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, POUND and ANDREWS, JJ., concur.
Order reversed, etc. *88