to the attorneys instead of to the workmen. Simplicity of procedure, rapidity and certainty in procuding payment, and receipt by the injured of the bulk of the award instead of large payments therefrom for services in obtaining it was the end looked to and accomplished by this remedial legislation.

There does not appear in the matter at bar to have been any deceit or concealment practiced by the respondent. The contract of retainer was in writing. The matter was threshed out before the Compensation Commission and again in court where respondent recovered a judgment upon the retainer. Nevertheless we cannot approve a course of conduct which appears to us to be a palpable evasion of one of the great purposes of the act. If it be understood that the courts approve the action of an attorney in procuring a third party to agree to pay to him an amount equal to 50 per cent of the recovery it is quite obvious that that third party will in some way or other recover it from the workman and so the workman will in the end be no better off in this regard than if this remedial legislation had not been passed. Members of the bar should honestly, straightforwardly and sincerely aid in the carrying out of this beneficent legislation and if they are unwilling to do the work for the amount allowed by the Commission they should stand aside and let others do it.

We do not think under the circumstances disclosed by this record, especially since it is the first case of the kind that has come before this court, that we should discipline the respondent. We do think, however, it is our duty to warn the profession that we regard such conduct, or the use of any means which the wit of man may devise by which a larger amount of the recovery shall go to an attorney than that fixed by the Commission as improper, unethical and deserving of disciplinary action. We think it clear that we ought to take this stand in support of this legislation and that hereafter we shall act upon such offenses accordingly.

With these words of warning the present proceeding is herewith dismissed. DOWLING, SMITH, PAGE and PHILBIN, JJ., concurred. Proceeding dismissed. Order to be settled on notice.

VII. IDENTIFICATION OF THE EMPLOYER

(Workmen's Compensation Law, § 3, subds. 3, 4 and 5) Decisions and opinions upon the subject prior to July, 1919, are in Bulletin 81, pages 340-347, and Bulletin 95, pages 194-225.

A. AGENCY FOR EMPLOYING

A com

A window cleaner fell and was killed while at work. mission hearing upon death benefit claims of his widow and children developed the fact that he had been hired by one man, Rosenblatt, secretly acting as agent for another, Spiegel. The arrangement had been due to Spiegel's difficulties with a labor union. Spiegel did business under a company name. The Appellate Division affirmed an award against the company, rather than against Rosenblatt, unanimously and without opinion: Schlenker v. Borough Hall Window Cleaning Co., Death Case, No. 350130, June 13, 1919; 190 App. Div. 924, Dec. 29, 1919.

In doubtful cases the test for identifying the employer is the question who has been served by the employee. The real employer need not have hired the employee or paid him his wages.

Under the State Military Law the City of New York pays the wages of certain National Guard employees. Upon death of a laborer in this class by industrial accident the Commission awarded death benefits against the city. The Appellate Division reversed the award upon the ground that the State was the employer. Its opinion is in Bulletin 97, page 77: Muller v. City of New York, 20 S. D. R. 375, Apr. 21, 1919; 189 App. Div. 363, Nov. 12, 1919.

A company whose goods were being stowed upon a ship needed. an expert stower to keep watch upon the stowing and to report immediately in case it was not being properly done. The representative of the company that was checking up the goods, having called up the representative of the company that owned the goods and reported the name of an applicant for the job, was told to set him to work. A third company paid the expert stower his wages and charged them up to the goods-owning company. Upon injury to the expert stower the Commission at first awarded compensation

against the company that was checking up the goods but later substituted for it the company that owned the goods: Newham v. Arne & Co., 21 S. D. R. 441, Nov. 11, 1919.

A general contractor with the New York State Highway Department for highway construction let out ninety per cent of the work under a certain contract to an engineering company for a consideration of $3000. Upon injury to an employee working under the engineering company, the Commission found that the engineering company was the agent of the general contractor relative to the employee and awarded compensation against the general contractor. The highway contract contained stipulations that it should be void unless the general contractor insured all employees necessary to performance of the work and that it should not be assigned without the consent of the Highway Department. The Commission found that the general contractor had not taken out insurance, though a company consisting of himself and his sons carried a blanket insurance policy: Gray v. Walker, Case No. 12125-R, Aug. 11, 1919; App. Div. pending May 1, 1920.

B. GOVERNMENT CONTROL

During the war the Federal Government managed the railroads and supervised the employment of workmen by government contractors. These circumstances did not constitute it the employer in lieu of the railroads or the contractors as concerned liability for compensation claims. The relations of the government and the railroads upon this score have been set forth by the Appellate Division in Bryant v. Pullman Co., text of which is in Bulletin 95, pages 221, 222. The order of the Appellate Division in the Bryant case has been affirmed by the Court of Appeals without opinion, Mar. 19, 1920. The United States Director General was held not responsible in Fish v. Rutland R. R. Co., text of which is in Bulletin 97, pages 237, 238; but an award was made against him in Farrington v. U. S. R. R. Administration, 20 S. D. R. 365, Feb. 24, 1919; 190 App. Div. 920, Dec. 29, 1919; - N. Y., Mar. 9, 1920. The Court of Appeals reversed the Farrington award for want of coverage. Federal employment offices selected employees for government contractors, the main object being safety against plots of alien enemies. One such

employee fell from a truck and was run over while on his way to his job. The Commission awarded compensation against the contractor: Haworth v. Brown, 20 S. D. R. 389, 4 Bul. 170, Apr. 30, 1919.

C. GENERAL EMPLOYER VERSUS SPECIAL EMPLOYER According to leading court decisions, the Commission may make an award against either the general employer or the special employer.

A general contractor company for bulkhead work in a bay off Staten Island furnished a derrick lighter, together with its equipment and crew, to a sub-contractor company. One of the lighter employees, a watchman, fell from a gangplank and was drowned. The Commission awarded death benefits against the sub-contractor company. Upon appeal, the sub-contractor company claimed that it had not requested the services of the watchman, had no use for him and had not controlled him exclusively or had the power to discharge him. But the general contractor claimed that the watch'man had been stipulated for as a member of the crew, was needed to keep the fires going under the boilers at night and could have. been discharged by the sub-contractor's captain in charge. The Appellate Division affirmed the award unanimously and without opinion: Norman v. Merritt & Chapman Derrick & Wrecking Co., Death Case, No. 69637, June 2, 1919; 190 App. Div. 887, Nov. 12, 1919.

A trucking company furnished trucks to a manufacturing company. When it did not have as many trucks as the manufacturing company called for, the trucking company procured additional trucks from other trucking companies and sent them to the manufacturing company. It made no profit upon the trucks so procured and added to its own force. The shipping clerk of the manufacturing company directed the trips of the truck chaffeurs. The chauffeur of a truck company procured from a third party lost his life from infection of a wound incurred in the course of this employment. Upon appeal from death benefits, the manufacturing company claimed that it was neither special nor general employer, but the Appellate Division affirmed the award against it, one judge dissenting (191 App. Div. 934); upon further appeal,

the Court of Appeals sustained the manufacturing company's contention; it reversed the Appellate Division's order and dismissed the claim, with majority and minority opinions as follows:

N. Y.

June 1, 1920.

SCHWEITZER V. THOMPSON & NORRIS CO., CRANE, J.: It is well settled that one may be in the general service of another and nevertheless with respect to particular work may be transferred with his own consent or acquiescence to the service of a third person so that he becomes the servant of that person with all the legal consequences of the new relation. (Standard Oil Co. v. Anderson, 212 U. S. 215, 220.) Difficulty frequently arises in determining when this transfer of relationship takes place. The rule was stated in this court in Hartell v. Simonson and Son Co. (218 N. Y. 345, 349) to be the following:

"A servant in the general employment of one person, who is temporarily loaned to another person to do the latter's work, becomes, for the time being, the servant of the borrower, who is liable for his negligence. But if the general employer enters into a contract to do the work of another, as an independent contractor, his servants do not become the servants of the person with whom he thus contracts, and the latter is not liable for their negligence." The cases of Kellogg v. The Church Charity Foundation of Long Island (203 N. Y. 191) and Schmedes v. Deffaa (153 App. Div. 819; 214 N. Y. 675) were cited as illustrations of the distinction.

Recognizing this temporary shifting of the relationship of master and servant the question has arisen in this case whether the Workmen's Compensation Law (Cons. Laws, ch. 67) has extended liability beyond either general or special employment. That is, will one engaged in a hazardous employment be liable to the servant of another who happens to be doing work for him under such circumstances as not to make him a special employer under existing law.

It was intimated in Matter of Dale v. Saunders Brothers (171 App. Div. 528) that such might be the law. This case was affirmed by this court in 218 N. Y. 59. The facts briefly were that one Dale was employed as a wagon driver by Saunders Brothers who sent him to cart dirt from a sand bank for one Walsh. While Dale was at work with his team and wagon the sand bank fell upon him and killed him. The claim for compensation was made against the general employers, Saunders Brothers. It was allowed by the Appellate Division and by this court. In affirming the Dale case we did not mean to adopt all that was said in the opinion below. It was there stated:

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"It is not a question of hiring, or of master and servant, but of using and putting the man in the hazardous employment which the act has in view, When it appears that a person is carrying on such hazardous employment for profit and that a person in his service or who he is employing or using therein receives an injury, compensation follows." (p. 531.)

A person may be using another in his work without making him his servant. A man in the trucking business may contract to do all the hauling and delivering for a manufacturer. He becomes an independent contractor for the trucking work. The manufacturer would be using the drivers or chauffeurs in his business but they would not be his employees.