Claim of Kehoe v. Consolidated Telegraph & Electrical Subway Co.

Lyon, J.: John Kehoe, deceased, the husband of the claimant, was employed by the Consolidated Telegraph and Electrical Subway Company, a corporation engaged in the business of constructing electrical conduits, as a watchman at its store yard in the city of New York. His duties were to sweep and mop out the office and to keep the drivers in the employ of the company out of the toolhouse. No pipes were laid or repaired there, and the tools were not used there. The yard was also used for the storage of tools and of materials, both of which were taken out and used on the work elsewhere, in connection with which the deceased had no duty to perform. On the afternoon of April 30, 1916, he was found dead in the office. An examination of the premises disclosed gas escaping from the disconnected supply pipe leading to the gas heater, and that his death occurred from gas poisoning. The Commission awarded compensation to the widow of the deceased, and also an allowance for funeral expenses. From such award the employer appeals. We think the award should not have been made. Concededly, the business which the employer was carrying on was a hazardous one within the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41). However, the deceased was employed simply as a watchman at the tools and materials storage plant where none of the business of the employer was being carried on, and he was in no way exposed to the hazards of the employer’s business. He was not an “ employee ” within the contemplation of the Workmen’s Compensation Law. Section 3, subdivision 4, defines an "employee ” as a person who is engaged in a hazardous employment. This the deceased was not, and hence the claimant was not entitled to the award. (Matter of Newman v. Newman, 218 N. Y. 325; [86] Matter of Bargey v. Massaro Macaroni Co., Id. 411; Brown v. Richmond Light & Railroad Co., 173 App. Div. 432; Mandel v. Steinhardt & Bro., Inc., Id. 515.) The award should, therefore, be reversed. All concurred, except Kellogg, P. J., who dissented in a memorandum in which Howard, J., concurred.