Claim of Benjamin v. Rosenberg Bros.

Headnote

Matter of Benjamin v. Rosenberg Br.os., 180 App. Div. 234 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 17, 1917, affirming an award of the state industrial commission, made under the Workmen’s Compensation Law. The claimant was injured through being thrown from an automobile which he was using in the course of his business of salesman. The controversy-centers aroimd the question as to whether- the claimant was an employee of the defendant Rosenberg Brothers, or of Philip Rosenberg, who was a brother of the Rosenberg Brothers, but not a member of the firm. I. H. Rosenberg, .one of the firm, testified that he made an arrangement with Philip Rosenberg to hire a salesman as an inducement to sell more merchandise, and that Philip Rosenberg was to pay Benjamin’s salary and expenses, and was to be reimbursed with merchandise for whatever he paid Benjamin. This arrangement included paying the chauffeur of the automobile and for gasoline. This is corroborated by Philip Benjamin, the claimant, who says he was introduced to Philip Rosenberg and was paid by him and the latter was reimbursed by goods that he obtained from the firm. The state industrial commission found that the claimant was employed by Rosenberg Brothers, and that the accident arose out of and in the course of the’ employment.