B.

DEFINITION OF EMPLOYEE

Employment is "a relation of power and dependence" based upon mutual promises. In its definitions of terms the Workmen's Compensation Law does not make working for hire a test of employment as the Labor Law does. The Court of Appeals has observations on the criteria of employment in its opinions holding both general and special employers liable for compensation, notably in DeNoyer v. Cavanaugh, 221 N. Y. 273, text of which is in Bulletin 95, pages 211, 212. It has declared that employment includes services rendered out of hours and gratuitously: Grieb v. Hammerle, 222 N. Y. 382; Bulletin 87, pages 149-151.

An eleven year old school boy was in the habit of riding a milk route with a milkman, especially on his Saturday school holiday. Together with other boys he ran with the milk bottles from the wagon to the customers' doors. The milkman usually gave him a dime Saturday night. One Saturday the milkman, having sprained his back lifting a can of ashes, requested the boy to assist him in peddling milk. Three other boys were along. The boy slipped and fell under a wheel of the wagon which crushed his ankle. His leg was amputated below the knee. The Commission, after hearing conflicting testimony of the milkman and the boys as to the employment and pay, awarded compensation totalling $1,576.45, calculation being made upon minor's expectation of increase. The Appellate Division affirmed the award unanimously and without opinion: Feck v. Schomske, Claim No. 18571, Oct. 15, 1917; 184 App. Div. 922, May 21, 1918.

A laborer seeking employment with a railroad had been told to report at its office for assignment to a job and had been getting meals and lodging upon its boarding and sleeping cars meanwhile. A train under which he crawled en route from the sleeping to the boarding car crushed his arm. The injury necessitated amputation. The Commission awarded him compensation, Commissioner Lyon dissenting (S. D. R., vol. 18, p. 573). The Appellate Division reversed the award and dismissed the claim upon the ground that no promises of employment existed between the parties. Its opinion is as follows:

Brassard v. DELAWARE & HUDSON Co., 186 App. Div. 647, Mar. 5, 1919.

H. T. KELLOGG, J.: The claimant was injured in the railroad yard of the Delaware and Hudson Company at Colonie, N. Y., at about noon on the 5th day of January, 1918. He was on his way across the tracks in the yard to get a mid-day meal at a dining car provided for employees. Finding that a train occupied one of the tracks, he started to cross underneath a car when the train moved and he was struck. Claimant asserts that he was at the time an employee of the Delaware and Hudson Company, and was injured while in the course of his employment.

The claimant had been employed by the appellant at its coal chutes at Colonie, N. Y., for 75 hours during the months of April and May, 1917. He was not again employed by the appellant until December, 1917, during which month he worked for 164 hours at its coal chutes at Carbondale, Penn. While at the latter place he informed a Mr. Kutz, who kept a railway boarding house for the appellant, that he desired to get work at Colonie. He obtained from him a railway pass to Colonie, and, being paid in full, started for Albany over the railroad of the appellant. Arriving on the night of January 2, 1918, he remained in Albany until the fourth of January, paying his own expenses for board and lodging. While there he made application to an employment bureau for work in the employ of the appellant. At about four of the afternoon of January fourth he left for Colonie. He arrived at about four-thirty, and there interviewed a clerk of the appellant whom he asked for work. He was questioned as to his work at Carbondale, and was told that while no such work was open there was a call for three men at the roundhouse in the yards at Colonie. He told the clerk that he desired to lodge and board at the railway cars provided by the appellant for employees, at four dollars and twenty cents a week. The clerk handed him a card marked with a number, and gave cards to two applicants for work who had accompanied claimant. He handed claimant a piece of paper, to use at the boarding car, reading, "Give these three men supper and breakfast," and told him to report at the office before seven in the morning to find out where he was to work and what the work would be. The character of the work to be done was not agreed upon, and the compensation to be paid was not mentioned. The claimant got his supper and breakfast at the boarding car, and spent the night on a sleeping car of the appellant which was provided for laborers. He did not return in the morning before seven to the clerk at the office as instructed, but instead slept until eightthirty, and, having had his breakfast, spent the morning on the sleeping car. When the noon-day whistle blew he started across the tracks for the boarding car to get his dinner, and it was then that he was struck and injured.

The claimant was not an employee of the appellant at the time of the accident. He was not such an employee through the continuance of any contract made at Carbondale. He worked at that place by the day, and was paid by the day at an hourly and over-time rate. It must certainly be that a laborer not at work remains in an employment only by virtue of continuing promises both to hire and to work. If there is no binding promise to work further there is no binding promise to hire further. Claimant did not promise to work at Carbondale for more than a day at a time. Nor when

he left that place did he promise to work for appellant at Colonie. Moreover, he was not then promised further work, nor does it appear that any person at Carbondale to whom he talked had power to engage him for work at Colonie. His conduct in remaining in Albany two nights and days, and in applying at the employment bureau there for work clearly shows that he did not consider himself to be at the time an employee of the appellant. Nor did the claimant become an employee through his conversation with the clerk at Colonie. No contract was then arrived at, for neither the work to be done nor the compensation to be paid was agreed upon, nor did the clerk positively state that he would give the claimant work. The conversation was purely tentative, and the claimant and the clerk were to arrange the matter on the following morning. That is why the claimant was told to come to the office before seven o'clock.. That is why the clerk gave claimant a ticket for supper and breakfast only. Even if an offer of work was made, that offer was conditional upon the return of the claimant, and when claimant failed to return the offer terminated. It is clear that the claimant, though an applicant for work, was never, in fact, employed.

Even if claimant was an employee of the appellant, he was not acting in the course of his employment when injured. It is true that an employee is within the protection of the Workmen's Compensation Law not only when actually at work, but also while upon the premises of his employer he is going to or from work or to or from a meal, or while at a meal which is had upon the premises during a temporary interruption of work. This claimant was not going to or from his work at the time of the injury, nor was he going to a meal during the interruption of his work, for he had as yet not worked at all. Finally, he was not going to a meal upon the premises, which he was permitted to take there, for his card to the boarding house was for supper and breakfast only, and both these meals he had already eaten. He had no right to a noon-day meal at the boarding house. Therefore, the claimant, even though an employee, was not in the course of his employment when injured.

The award should be reversed and the claim dismissed. All concurred, except JOHN M. KELLOGG, P. J., dissenting. Award reversed and claim dismissed.

A station agent, not being able to close the door of a freight car, called upon a bystander to help him. The bystander, responding, caught and injured his finger. Tetanus developed, causing his death. The Commission held that the bystander was a temporary employee and awarded death benefits to his widow against the station agent's employer (S. D. R., vol 20, p. 365, Feb. 24, 1919). Upon Appeal, the Appellate Division affirmed the award, Justice H. T. Kellogg dissenting with memorandum, as follows:

FARRINGTON Vv. U. S. R. R. ADMINISTRATION,
App. Div. -, Dec. 29, 1919.
Appeal from an award of the State Industrial Commission, made on the
24th day of February, 1919. Award affirmed. All concurred, except H. T.
Kellogg, J., who dissented in memorandum.

H. T. KELLOGG, J., (dissenting): Two laborers, of whom John Farrington was one, were engaged in unloading screenings, for an employer named Burns, from a car standing on the tracks of the Long Island railroad. They finished their work at about 4:00 p. m., and boarded a motor truck of their employer to return to their homes. The station agent of the Long Island railroad, together with a helper, was then making an effort to close one of the doors of a box car standing near by. The agent called out to the men on the truck "Come on fellows, give me a hand to close this door," or, as stated by the agent, "Will one of you men give us a hand to close this door." Both men went over to help move the door, which in closing caught the hand of Farrington and clipped off the end of his finger, with the result that infection set in and he subsequently died of the disease of tetanus. Upon a claim filed by the widow of Farrington an award was made against the Director-General, based upon findings of the Industrial Commission that Farrington came to his death through an accident occurring while he was in the course of employment by the Long Island railroad. The theory of the award seems to have been that while Farrington was in the general employ of Burns he was at the moment of the accident temporarily in the special employ of the Long Island railroad. None of the cases dealing with the coexistence of a general and a special employment have the slightest application to the facts of this case. Farrington was not loaned by Burns to the railroad for a special purpose, or directed by any representative of Burns to go to the help of the agent. No offer of pay was held out to him or his employer, nor did he become, through the orders of his employer or by any act of his own, subject to the directions and control of the railroad agent. The agent testified that he had no authority to employ labor, and particularly to employ the two men whose help he asked. These men had finished their work and were about to go home on their employer's truck when they were called upon to do a friendly act requiring the exertion of their strength but for a moment of time. To call their acts those of a new employment rather than acts of kindness gratuitously performed is to supply a mercenary motive where the proven facts indicated that none existed. In Geibel v. Elwell, 19 App. Div. 285, a small boy standing on a pier was asked to throw off the hawser of a departing vessel, and was injured in consequence. It was said in that case "There certainly was no express hiring, and the mere gratuitous rendering of such a service did not impliedly create, as between the plaintiff and those on the brig, the relation of fellow servants." The deceased was not an employee of the Long Island railroad, and the award should not have been granted.

The award should be reversed.

Two special contractors were working upon the same building. One of them called upon the other for the services of himself and his derrick and gas engine to hoist a large timber or beam. The contractor so called upon having hurt his foot while doing the work, the Commission held that he stood in the relation of employee to the contractor for whom the work was being done. It awarded compensation accordingly, one Commissioner dissent

ing (S. D. R., vol. 20, p. 446, July 1, 1919). The Appellate Division affirmed the award with majority and dissenting opinions, as follows:

MANDATTO V. HUDSON SHORING Co., 190 APP. DIV. 71, DEC. 29, 1919.

LYON, J.: This appeal is taken upon the ground that the claimant was not at the time of receiving the injury an employee of the defendant, the Hudson Shoring Company, but was an independent contractor. The Fireproof Construction Company had a contract to erect a building in Brooklyn, N. Y. It had made a contract with the Hudson Shoring company to shore up the building on adjacent property. It had also made a contract with the claimant to excavate the cellar of the building. For the purpose of doing such work the claimant had a derrick and gasoline engine. The claimant made a verbal agreement with the Hudson Shoring Company that each would mutually assist the other; that the claimant might use the blocking and timbers the Hudson Shoring Company had upon the work, and in return therefor the claimant would use his derrick and engine in assisting it in its work. On June 27, 1918, the Hudson Shoring Company asked the claimant, in pursuance of the agreement between them, to use his derrick and engine to hoist for it a large beam which it was using in its shoring operations. While doing so, claimant's right foot became caught in the slack end of the ropes being used and was badly crushed, disabling the cliamant. The State Industrial Commission made an award of compensation against the Hudson Shoring Company and its insurance carrier, and continued the claim for further hearing. From such award this appeal is taken.

The claimant was rendering service to the Hudson Shoring Company at its request. While there was no agreement to pay him in money for the service rendered, yet he was to receive the use of blocking and timbers as the consideration therefor. He was not engaged in the performance of any work for himself, nor upon his contract for excavating, but while rendering such service he was an employee of the Hudson Shoring Company within the meaning of the Workmen's Compensation Law, section 3, subdivision 4 (Kucharuk v. McQueen, 221 N. Y. 607; De Noyer v. Cavanaugh, Id. 273; Dale v. Saunders, 218 id. 59; Powley v. Vivian & Co., 169 App. Div. 170.)

The award should be affirmed. All concurred, except H. T. Kellogg, J., dissenting, with a memorandum.

H. T. KELLOGG, J. (dissenting): The claimant was an independent contractor, who had a contract to make an excavation which he was performing through his own labor and that of his men, by the use of a derrick, a gas engine and other equipment. He was asked by the Hudson Shoring Company, which also had a contract relating to the same job, to assist with his derrick in lifting a timber for that company. The claimant complied with the request, and in the course of lifting the timber, caught his foot in a rope and was injured. In all of the cases dealing with the subject of a general and a special employer there is invariably present a contract relationship of master and servant, of an employment for hire, a condition of subjection of one person as a servant to the orders and directions of another person as an employer. The general employer hires the servant for a consideration to be paid, and loans the servant so hired to the special employer, to whose orders he is sub