Claim of Cummings v. Underwood Silk Fabric Co.

Woodward, J.: The death of the employee resulted from an accidental injury September 16, 1916, at the plant where a hazardous employment was carried on by the employer. He was, therefore, an employee within the meaning of subdivision 4 of section 3 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), as amended by chapter 622 of the Laws of 1916. (Matter of Dose v. Moehle Lithographic Co., 221 N. Y. 401; Matter of McNally v. Diamond Mills Paper Co., 223 id. 83.) In Solomon v. Bonis (181 App. Div. 672; affd., 223 N. Y. 689) the injury occurred in a non-hazardous employment. It is not, therefore, an authority here. Since the amendment of 1916 a casual employee in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment, is within the act. Under the circumstances of this case, the decedent was not an independent contractor, but in the ordinary employ of the appellant employer. I am not unmindful of the difficulty in reaching correct decisions in the phase of the Workmen’s Compensation Law here presented; but, after a careful study of the authorities, I am persuaded that both law and justice require an affirmance and I so recommend. All concurred, except Lyon, J., dissenting in opinion, in which H. T. Kellogg’ J., concurred.