ing from a street car with intent of going upon a milk route to instruct a new driver. It held that he was not operating a vehicle, with opinion as follows:

BALK V. QUEEN CITY DAIRY Co., 184 App. Div. 631, Nov. 13, 1918. LYON, J.: The deceased, Leo P. Balk, was employed by the Queen City Dairy Company as the superintendent of its wholesale routes. On October 20, 1916, he left his employer's place of business to go upon one of the routes where there was a new driver in order to familiarize the driver with the route. In order to reach the route he was required to travel by street railway car. In getting off the car a Ford automobile struck him in the left hip and ran him against a telephone pole, and he sustained injuries which resulted in his death November 2, 1916.

The award must be reversed for the reason that Leo P. Balk was not at

the time engaged in a hazardous occupation. He was not in any way engaged in operating a wagon. (Matter of Glatzl v. Stumpp, 220 N. Y. 71.) He was merely alighting from a street railway car. In so doing he met with the accident which resulted in his death. He was not in the service of an employer whose principal business was carrying on or conducting a

hazardous business.

The award must be reversed and the case dismissed. All concurred. Award reversed and claim dismissed.

Group 42. (1) Plastering.—Filling a hole with plaster incidentally to kalsomining is not plastering; and

(2) Construction, repair and demolition of buildings.- Kalsomining is not "construction, repair and demolition of buildings."

These two points are made by the Appellate Division as follows:

HUNGERFORD V. Bonn, 183 App. Div. 818, July 1, 1918, in part.

He and his other employee were engaged in kalsomining the walls of a parlor, in the downstairs apartment, March 13, 1917. The appellant employer's wife saw a rough spot in the celing in the parlor, which she thought ought to be smoothed out before it was kalsomined. Her husband said, "'You can plaster, can't you smooth that up; I cannot get a man for a small job like that.'" The claimant said, "I could, but I did not want to, as I did not have tools.' He went out and got some plaster and a trowel which was worn out," and while plastering the spot some of the lime fell into the claimant's eyes, causing the injury complained of.

It cannot be said that the appellant, with reference to this house, was engaged in "construction, repair and demolition of buildings," or in any other employment declared hazardous by the Workmen's Compensation Law. The fact that the kalsominer found it necessary to smooth the ceiling and fill a little hole with plaster in order to properly do his work, did not bring the

the opinion is in Bulletin No. 87, Part 1, pages 63-65. Pertinent part of the opinion in the Hassen case is as follows:

HASSEN V. ELM COAL Co., 184 App. Div. 715, Nov. 13, 1918, in part.* COCHRANE, J.: Claimant was a laborer employed in a coal yard. He was injured by some coal falling on him while he was unloading it into a wagon from a railroad car standing in the yard of the employer. The employer and employee entered into an agreement on December 11, 1916, under section 20 of the Workmen's Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], as amd. by Laws of 1915, chap. 167) for the payment of compensation, which agreement was in the form provided by said section and was subsequently approved by the Commission on March 7, 1917. By virtue of the statute (§ 20) such approval became an "award." Payments were made under this award and subsequently the insurance carrier made an applica tion to the Commission to vacate it on the ground that the claim was not within the statute and that the Commission was, therefore, without jurisdiction. This application was denied by the Commission and the insurance carrier appeals to this court.

The accident occurred November 25, 1916. At that time coal yards were not classified among the hazardous employments under section 2 of the Workmen's Compensation Law (as amd. by Laws of 1916, chap. 622) † and the employer was not engaged in conducting any hazardous employment under the act. It is suggested that because the claimant was loading coal into a wagon he was engaged in the operation of the wagon and that hence his claim falls within group 41 of section 2 of the act. It does not clearly appear what caused the coal to fall on the claimant, but there is no suggestion that any movement of the wagon or defect therein occasioned or contributed to the accident. Claimant was not a teamster nor in any way engaged in the operation of the vehicle. His duties confined him to the yard. He describes himself as a laborer and expressly disclaims that he was a driver or that he delivered coal. The case is distinguishable from Matter of Dale v. Saunders Brothers (218 N. Y. 59), where the claimant was a teamster operating a wagon and the work of loading the wagon was incidental to his duties in the operation thereof. Here the claimant was not engaged in the business of operating a vehicle as in the Dale case and his work in loading the wagon was not incidental to such operation but was his principal and in fact his only work at the time of the accident. The case is not distinguishable in this particular from Roberto v. Schmadeke, Ina (180 App. Div. 143), where the claimant was injured while loading coal into an automobile truck for delivery to customers. The claim was disallowed in that case although this particular point was not there raised. As well might it be urged that because the claimant was unloading coal from the railroad car into a wagon he was engaged in the operation of a railway, and so within group 1 of

section 2.

Upon the same day that it reversed award in the Hassen case, the Appellant Division also reversed award in the case of a superintendent of milk routes run down by an automobile while alight

The rest of the opinion is in Bulletin 95, p. 249.

† See § 2, Group 19, as since amd. by Laws of 1917, chap. 705.— REP.

ing from a street car with intent of going upon a milk route to instruct a new driver. It held that he was not operating a vehicle, with opinion as follows:

BALK V. QUEEN CITY DAIRY Co., 184 App. Div. 631, Nov. 13, 1918. LYON, J.: The deceased, Leo P. Balk, was employed by the Queen City Dairy Company as the superintendent of its wholesale routes. On October 20, 1916, he left his employer's place of business to go upon one of the routes where there was a new driver in order to familiarize the driver with the route. In order to reach the route he was required to travel by street railway car. In getting off the car a Ford automobile struck him in the left hip and ran him against a telephone pole, and he sustained injuries which resulted in his death November 2, 1916.

The award must be reversed for the reason that Leo P. Balk was not at the time engaged in a hazardous occupation. He was not in any way engaged in operating a wagon. (Matter of Glatzl v. Stumpp, 220 N. Y. 71.) He was merely alighting from a street railway car. In so doing he met with the accident which resulted in his death. He was not in the service of an employer whose principal business was carrying on or conducting a

hazardous business.

The award must be reversed and the case dismissed. All concurred. Award reversed and claim dismissed.

Group 42. (1) Plastering.(1) Plastering.- Filling a hole with plaster incidentally to kalsomining is not plastering; and

(2) Construction, repair and demolition of buildings.— Kalsomining is not "construction, repair and demolition of buildings."

These two points are made by the Appellate Division as follows:

HUNGERFORD V. BONN, 183 App. Div. 818, July 1, 1918, in part.

He and his other employee were engaged in kalsomining the walls of a parlor, in the downstairs apartment, March 13, 1917. The appellant employer's wife saw a rough spot in the celing in the parlor, which she thought ought to be smoothed out before it was kalsomined. Her husband said, “'You can plaster,- can't you smooth that up; I cannot get a man for a small job like that.'' The claimant said, "I could, but I did not want to, as I did not have tools.' He went out and got some plaster and a trowel which was worn out," and while plastering the spot some of the lime fell into the claimant's eyes, causing the injury complained of.

It cannot be said that the appellant, with reference to this house, was engaged in "construction, repair and demolition of buildings," or in any other employment declared hazardous by the Workmen's Compensation Law. The fact that the kalsominer found it necessary to smooth the ceiling and fill a little hole with plaster in order to properly do his work, did not bring the

employer within the hazardous business of plastering for profit. The work did not differ from the ordinary work done periodically by all householders of kalsomining certain rooms in the house. The evidence is undisputed. It was error of law to say that the alleged employer was carrying on a haz ardous employment at this time and place for profit. (Matter of Schmidt v. Berger, 221 N. Y. 27; Geller v. Republic Novelty Works, 180 App. Div. 762; Soloman v. Bonis, 181 id. 672; Matter of Kammer v. Hawk, 221 N. Y. 378.) The award should be reversed and the claim dismissed. All concurred, except COCHRANE, J., dissenting. Award reversed and claim dismissed.

(3) Carpentry. The Appellate Division has affirmed an award to a carpenter regularly and constantly employed by a department store: Alterman v. Namm & Son, S. D. R., vol. 20, p. 432, May 31, 1919; - App. Div. Dec. 29, 1919. Opinion

in the case appears below, page 141.

(4) Steamfitting.-An employee was both an expert draftsman and a steamfitter. His employer had been keeping him steadily in the office at draftsmanship but sent him out one Sunday upon a special job of installing a pump. While at this fitting work he injured his left hand. The injury disabled him from steamfitting but not from draftmanship. The Commission made an award to him for temporary total disability to pursue his trade of steamfitting, though he had not been disabled from drafting and in fact had resumed drafting work in his employer's office at his usual wages for a period immdiately following his accident. No deduction was made on account of such wages for drafting paid during disability for steamfitting. The Appellate Division affirmed the award unanimously and without opinion: McKay v. Hinchman Co., S. D. R., vol. 10, p. 636, Oct. 30, 1916; 178 App. Div. 942, May 2, 1917.

Group 43. Public employees. For accidental injuries prior to enactment and amendment of this group, as well as since its enactment and amendment, public employees have had resort to the state legislature for special acts referring their claims to the Court of Claims or to the State Industrial Commission; compare L. 1918, chs. 598, 599, 608, 609, 614. The constitutionality of such special acts has been upheld by the Appellate Division and the Court of Appeals with opinions in Munro v. State of New York, 181 App. Div. 30, Dec. 28, 1917; 223 N. Y. 208, April 2, 1918.

Compensation awards to patrolmen of New York city have been resisted upon the ground that such patrolmen do not have the status of employees; representatives of the city have cited numerous cases in police law in support of the contention: Ryan v. City of New York, S. D. R., vol. 18, p. 600, Dec. 20, 1918; Kahl v. Dept. of Water Supply, New York City, S. D. R., vol. 19, p. 512, Bul., vol. 4, p. 147, March 18, 1919. The Appellate Division affirmed the Ryan award; the Court of Appeals reversed it for want of coverage ( N. Y., Jan. 20, 1920). Both courts handed down opinions. The Appellate Division's majority and dissenting opinions are as follows:

RYAN V. CITY OF NEW YORK, 189 App. Div. 49, Sept. 18, 1919. LYON, J.: The question presented by this appeal is whether this claim comes within the provisions of the Workmen's Compensation Law.

The claimant was a patrolman of the city of New York. He was injured June 11, 1918, by falling from a box to the concrete cellar floor while removing a bulb from the electrical fixture in the ceiling of the station house. His right wrist and shoulder were sprained. He was removed to the Fordham Hospital and there confined from June nineteenth to July sixth. He was assigned as attendant October 16, 1917. His duties were to care for the prisoners who were brought to the Thirty-seventh precinct station house, and to take charge of the lower floor, clean the walls and the floor, and fix the electric lights. He worked seven days of the week. An award was made him by the Commission for three weeks and four days at fifteen dollars per week. From such award the city appeals.

Section 2 specifies what are hazardous employments and subdivides them into groups.. Group 42 provides that the maintenance and care of buildings, sanitary lighting or heating installation or repair, are hazardous employments. Group 43 provides that any employment enumerated in the foregoing groups and carried on by the State or a municipal corporation or other subdivision thereof, notwithstanding the definition of the term "employment" in subdivision 5 of section 3 of this chapter, is a hazardous employment. It may be noted as bearing upon the intention of the Legislature as to the construction to be given to the act, that group 44 provides, " employment as a keeper, guard or orderly in a prison, reformatory

maintained or operated by the state or municipal corporation or other subdivision thereof, notwithstanding the definitions of the terms 'employment,' 'employer' or 'employee' in subdivision five of section three of this chapter," is a hazardous employment.

By section 3, subdivisions 3 and 4, the word "employer" includes the State and a municipal corporation, or other political subdivision thereof, employing workmen in hazardous employments; and the term "employee" means a person engaged in one of the occupations enumerated in section 2. Having been detailed by his superior officer to care for and maintain the station house, and to look after the installation or repair of the electric lighting system, he comes within the definition of an employee under the

law.

He has not received any pay for his time while laid up from his