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opinion: White v. Berkman, Death Case, No. A-606, April 19, 1918; 186 App. Div. 926, Nov. 13, 1918.
A workman was removing the awnings from fourteen apartment houses owned by a company. He was a piece-worker at ten cents per awning. In the course of the task he fell, breaking his arm and otherwise injuring himself. The Commission awarded compensation to him as a claimant against the company. Upon appeal the company argued that he was not its employee but was either an independent contractor himself or was in the employ of an independent contractor with whom it had had dealings and who had sent him to it. The Appellate Division affirmed the award upon evidence set forth in the following opinion:
ABROMOWITZ V. HUDSON VIEW CONSTRUCTION Co., 188 App. Div. 356, June
30, 1919. LYON, J.: The decision of this appeal depends upon whether the claimant
an employee of the Hudson View Construction Company, or independent contractor.
The construction company was the owner and engaged in the maintenance and care of apartment houses in the city of New York, one of which was at 884 Riverside drive. On such apartment houses were several thousand awnings which were put up and taken down each year. On September 23, 1918, while the claimant was engaged in taking down an awning at 884 Riverside drive, he lost his balance and fell from the third story to the ground, and sustained injuries which disabled him from working from that date to December 2, 1918, at which time he was still disabled. The State Industrial Commission awarded him compensation for ten weeks at the rate of fifteen dollars per week, and continued the claim for further hearing. From such award this appeal has been taken.
From April, 1918, the claimant had been employed by Benjamin Feinberg, a manufacturer of window shades and awnings, as an awning hanger and remover, working by the day, and a greater part of the time at piece work. In September, 1918, Feinberg at the office of the construction company had a conversation in which it was stated to him that the construction company wanted all the awnings removed from its apartment houses, and asked him if he could send the same man who took them off before. Feinberg said he did not know where the man was, but that he had a good man whom he could recommend who would take the awnings down and charge them ten cents an awning, because that is what he paid him. Feinberg told claimant of the conversation and sent him to the construction company, telling him to go and look at the job and see if he wanted to take it on himself. He went to the construction company and said to them that he was the man whom Feinberg had sent about the awnings, and Mr. Friedman, the representative of the construction company, told him to go ahead, and for each awning he
removed he got ten cents. He was told what house to work on. Claimant had pliers with him and went to work, and the eighth day the accident happened. He was taken to the hospital. He said no one came to see him and he did not know who was responsible; and he called up Feinberg to ask him whom he worked for and Feinberg told him he was working for Friedman. The claimant testified he had worked for other people on the same terms, and after he had finished working for Friedman, he would have gone back to Feinberg to find whether he had any work for him. The claimant had never worked for the construction company before. He could work such hours as he pleased. The construction company simply designated the houses where he was to take down awnings, and retained the right to discharge him in case he did not do his work properly. The claimant was not the regular employee of any person, but worked for any one needing his services. The claimant testified: “I couldn't go and get anybody to put on the job, because Mr. Freidman wouldn't have let me. He could have discharged me any time he wanted to."
From the evidence in the case the Commission could find that the Hudson View Construction Company retained the control and direction of the details and method of performing the work, and could discharge the claimant if he disobeyed its orders.
The Commission having found that the construction company was the employer and there being evidence to support such finding, the award should be affirmed.
All concurred, except COCIIRANE, J., dissenting. Award affirmed.
The Court of Appeals affirmed the Appellate Division's order in the Abromowitz case without opinion, January 20, 1920.
D. HAZARDOUS EMPLOYMENTS Opinions and decisions interpretative of the various groups of Workmen's Compensation Law, § 2, prior to June 1, 1918, have been presented in Bulletin No. 81, pages 102–110, 262–266, and Bulletin No. 87, Part 1, pages 57–87. Opinions since June 1, 1918, are presented here.
Group 8. . Admiralty and maritime jurisdiction.--- The topic is presented below, pages 243–259. The clause, “other than vessels of other states or countries used in interstate or foreign commerce, when operated or repaired by the company,” has been applied to the exclusion of awards in Charlton v. Hilton-Dodge Trans. Co., Bulletin 87, pages 304–307, and Patterson v. Lehigh Valley Trans. Co., S. D. R., vol. 19, p. 453, Feb. 14, 1919.
Group 10. Longshore work. An employee hired for his skill in supervising the stowing of goods upon a vessel was accidentally hurt while on the dock. Commissioner Lyon held the case to come within group 10 and not within group 8: Newham v. Arne & Co., S. D. R., vol. 21, p. 441, Nov. 11, 1919. Compare Edwardsen v. Jarvis Lighterage Co., Bulletin 81, page 262.
Group 14. Logging.— A farm laborer engaged in logging is not covered by this group: Brockett v. Mietz, 184 App. Div. 342, July 2, 1918. Full text of the opinion appears below, page 148.
Group 16. Upholstering.- Taking up an old carpet and putting down a new one is not upholstering. The Appellate Division has so held, reversing an award of the Commission, with opinion as follows:
STRADER V. STERN BROS., 184 App. Div. 700, Nov. 13, 1918. WOODWARD, J.: The claimant, in presenting his claim for compensation, gave his occupation at that of a carpet-layer. The employer's first report of the injury gave the same answer to the question as to the nature of claim. ant's work, and no one disputes these declarations. Indeed, the award is based upon the fact that while the claimant was engaged on June 7, 1917, in laying a carpet in the Democratic Club at 617 Fifth avenue, New York, he dropped his knee upon a tack, receiving an injury resulting in subsequent infection of his limb. The State Industrial Commission has made an award
upon the strength of testimony by a member of a labor union that a carpetlayer is an upholsterer within some of the provisions of a labor organization, holding that the injury comes within the limits of group 16 of section 2. This group of the Workmen's Compensation Law is: “ Manufacture of furniture, interior woodwork, organs, pianos, piano actions, canoes, small boats, coffins, wicker and rattan ware, upholstering; manufacture of mattresses or bed springs." (Consol. Laws, chap. 67 (Laws of 1914, chap. 41), § 2, group 16, as amd. by Laws of 1916, chap. 622.)
It is entirely obvious that “upholstering," as used here, is in its manufacturing sense, a branch of lounge and parlor chair manufacturing, or a similar line of work in connection with the permanent decoration of houses; and no rule of construction can justify extending the word “ upholstering" to cover the mere laying of a carpet. “Upholster” is defined by Webster: “To furnish (rooms, carriages, bedsteads, chairs, etc.) with hangings, coverings, cushions, etc.; to adorn with furnishings in cloth, velvet, silk, etc., as to upholster a couch; to upholster a room with curtains.” The same authority defines upholsterer as one who provides hangings, coverings, cushions, curtains and the like; one who upholsters." We are required to give to words in a statute their ordinary and obvious meaning. The Workmen's Compensation Law is no exception to this rule, when cases reach this court. We may take judicial notice, in the absence of legislative enactment, that the mere laying of a carpet is not a hazardous occupation; it is not within the spirit of the law. The group in which we find upholstering is a manufacturing group; is a group in which machinery and tools and manu. facturing conditions exist; and the word should be given the construction which its association in the statute suggests, even though it might have a broader meaning under exceptional circumstances. This is specially true when the word does not come within any of the definitions, fairly understood, given by the standard lexicographers. The Legislature has, with reasonable clearness, extended the original scope of the act, but it has not yet made the laying of carpets a so-called hazardous occupation.
The award should be reversed and the claim dismissed. All concurred, except John M. KELLOGG, P. J., and COCHRANE, J., dissenting. Award reversed and claim dismissed.
Group 22. (1) Operation of elevators.— Children operating elevators in violation of the Labor Law are within the Workmen's Compensation Law's coverage: Robilotto v. Bartholdi Realty Co., 104 Misc. 419, Sept., 1918. Text of the opinion in this case is given below, page 161.
(2) Heating and lighting.— Incidental heating of a saloon by a self-regulating boiler is not within this group's coverage: Hes: mann v. Wolff, S. D. R., vol. 18, p. 609, Bul., vol. 4, p. 85, Dec. 23, 1918. Group 23.
23. Manufacture of metal wares.—.1 hardware merchant who puts together coffee mills, lawn mowers, etc., that
come to him in knockdown shape is not on that account engaged in the manufacture of them. Commissioner Lyon is of such opinion in Rosenberg v. Goldenblum & Co., S. D. R., vol. 20, p. 469, Aug. 2, 1919.
Group 25. (1) Storing or handling of explosives.— This group does not cover shooting galleries: Lingner v. McGrath, S. D. R., vol. 17, p. 573, Bul., vol. 3, p. 216, May 29, 1918; 187 App. Div. 911, Jan. 8, 1919.
(2) Storing or transporting ice.- This group does not cover harvesting of ice for use upon a farm; the Appellate Division, Third Department, has so held, very briefly, in an action for damages, the opinion of which deals in the main with the question of contributory negligence: Mullen v. Little, 186 App. Div. 169, Jan. 8, 1919.
Group 28. Manufacture of drugs.— A retail druggist whose employee makes glycerite of tannin, a simple procees of heating glycerine and stirring in tannin, a powder, is not engaged in the manufacture of drugs. The Appellate Division has unanimously so held in reversing an award and dismissing a claim with opinion, as follows: FREESS V. KLEINAU,
Dec. 29, 1919. WOODWARD, J.: The employee's first notice of claim, answering the question, “How did accident happen?” says: While making a pharmaceutical preparation I tried to raise window to let fumes escape. My hand slipped and crashed against the pane which was cracked cutting my right index finger." This was followed by an infection, resulting, no doubt, in the injury for which compensation has been awarded.
The evidence in the case shows that the claimant was employed in a retail drug store at 941 Park avenue, New York; that he had just completed the compounding of a simple throat remedy known as glycerite of tannin, to be dispensed to the patrons of the store, and that in opening a window to let the fumes pass away the injury was done. The question, upon the merits, is whether this retail drug business was within the provisions of the statute; whether it was among the hazardous occupations. The claimant, who appears to have been an honest man, was induced to testify generally that the compound which he had just prepared was for sale to the customers of the store, and that other druggists might have purchased the same, but he said he knew of no other druggist doing so. Of course this testimony showed nothing more than that the compound was made for sale to the public, to the customers of the store, and it would not have been refused to a druggist who happened to come in and offer to purchase the same, but it certainly did not tend to change the character of an ordinary drug store to that of a wholesale manufacturing druggist, such as is contemplated by group 28 of section 2 of the Workmen's Compensation Law.