Claim of Sullivan v. Preston — 177 A.D. 110

Majority

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Before State Industrial Commission, Respondent. In the Matter of the Claim of Thomas Sullivan, Respondent, for Compensation under the Workmen’s Compensation Law, v. William Preston and George Preston, Employers, and The Fidelity and Casualty Company of New York, Insurance Carrier, Appellants.

Third Department,

March 7, 1917.

Headnote

Workmen’s Compensation Law — question as to whether general contractor or sub-contractor was “ employer ”—when findings of State Industrial Commission should not be disturbed on appeal.

Where the question arises as to whether a claimant was employed by persons having a general contract to clear a tract of land of wood, or by other persons claimed to be sub-contractors, a finding of the State

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Industrial Commission based upon some evidence that the general contractors were the employers, within the meaning of the statute, should not be disturbed on appeal.

Appeal by the defendants, William Preston and others, from an award of the State Industrial Commission, entered in the office of said Commission on the 11th day of September, 1916.

Nadal, Jones & Mowton [Edward P. Mowton of counsel], for the appellants.

Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], and Robert W. Bonynge, counsel to State Industrial Commission, for the respondents.

Francis Barry Cantwell, for the claimant.

The claimant was injured while working on a lumber job at Indian Pass, North Elba, N. Y., and the question on this appeal arises as to the employer — whether the claimant was working for Preston Brothers, who had a contract with the J. & J. Rogers Company to clear a tract of pulp wood, or whether he was in the employ of Musgrave & Woods, who are claimed to have been subcontractors and the employers of the claimant. The State Industrial Commission has ’ made an award for forty-eight and one-half weeks at fifteen dollars per week and continued the claim for further hearing. The insurance carrier and Preston Brothers appeal from the award, and urge the single point that the claimant was not the employee of Preston Brothers.

It must be conceded that the evidence is not conclusive as to the relationship existing between Preston Brothers and .the claimant, but the State Industrial Commission, which is authorized to make conclusive findings of fact in reference to claims of this character, has held that the Preston Brothers were the employers within the meaning of the statute, and, as there is some evidence upon which this finding may rest, we are not authorized to disturb the same. Preston Brothers had the general contract, and, while there appears to be a custom, of subdividing the track to be cleared among small

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groups of men, it is evident from the record before us that these subdivisions into groups do not amount fa> the creation of subcontractors in the sense that it relieves the general contractors from the liability of affording compensation to those who are injured in the work. Preston Brothers were the only ones who had taken out insurance, indicating their understanding of the liabilities incurred, and we are of the opinion that this award should not be disturbed.

The award should be affirmed.

Award unanimously affirmed.