Kiernan v. Priestedt Underpinning Co. — 157 N.Y.S. 900

Majority

p. 900

KIERNAN v. PRIESTEDT UNDERPINNING CO. et al.

(Supreme Court, Appellate Division, Third Department.

March 8, 1916.)

Headnote

Master and Servant <@=>375(2)—Workmen’s Compensation Act—Bight to Compensation—“Employé.”

An employé of a contractor, who had been in his employ for about eight months at a .daily wage payable weekly, and who on appearing for work one morning a little late was told by the superintendent that he need not work, because he thought that he had been drinking and

<§=>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

p. 901

was not in a fit condition to go to work, and who while leaving the subway tripped and fell and was injured, was a regular “employe” there in the performance of his duties as such, and entitled to the benefits of the Workmen’s Compensation Act (Consol. Laws, c. G7).

,[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. <§=3375(2).

For other definitions, see Words and Phrases, First and Second Series, Employé.]

Appeal from Workmen’s Compensation Commission.

Proceeding under the Workmen’s Compensation Act on a claim arising out of the death of James Kiernan, deceased, to obtain compensation therefor, opposed by the Pfiestedt Underpinning Company, employer, and the Casualty Company of America, insurer. Compensation was awarded by the State Industrial Commission, and the employer and the insurer appeal. Award affirmed.

Argued before KELLOGG, P. J., and LYON, HOWARD, WOODWARD, and COCHRANE, JJ.

Lyman A. Spalding, of New York City, for appellants.

Egburt E. Woodbury, Atty. Gen., and E. C. Aiken, Deputy Atty. Gen., for respondent.

The claimant had been in the employ of the employer appellant for about eight months, receiving $3.68 per day, payable weekly. On Monday, April 27th, he worked as usual. Upon appearing for work in the subway Tuesday morning, dressed in his overalls, he was a little late, and the superintendent told him he need not work. He excused him from work, not because he was late, but because he felt that he had been drinking some and was not in a fit condition to engage in the dangerous kind of work which he had been doing. Pie started to leave the subway and tripped and fell, receiving the injury complained of.

The appeal proceeds upon the theory that he was not a regular employé, but was there asking for work, which was refused, and that he was not, therefore, injured within the course of his employment. This contention overlooks the fact that he had been employed almost continuously for eight months, and that there was not a separate employment from day to day. The only thing tending to show a daily employment is that he was paid by the day, but his wages were payable weekly. Concededly, he was expected to report for work that morning, and did report, and was told he was not wanted. He was, therefore, a regular employé, and was there in the performance of his duty as such, and is entitled to the benefit of the act.

The award should be affirmed. All concur.