Harris, 166 N. Y. 257, 59 N. E. 820; Berkbeck v. Ackroyd, 74 N. Y. 356, 30 Am. Rep. 304; Porter v. Dunn, 131 N. Y. 314-317, 30 N. E. 122.

These questions must be determined, when necessary, by a consideration of all the circumstances and all the inferences which may arise from the contract and the relations of the parties and the acts done. We express no opinion upon them, but conclude that under the presumptions raised by Workmen's Compensation Law, § 21, it may be said, for the purposes of that law, at least, that the husband had a certain duty to see that the work at the restaurant was properly performed, and if he performed his other duties, and the wife was unable or indisposed to carry the laundry or to perform similar services, that it was his right and duty under the contract to carry the laundry and to perform similar services with reference to the restaurant business. By doing such acts he did not abdicate the employment and occupy the position of a stranger to the defendant.

We have seen that some of the food for the restaurant was prepared at their home, over their stove, and with their equipment, which we assume he owned. Evidently the husband and wife treated the contract as a mutual affair, for the only rent paid was paid by her, assumably from the general fund, or from the earnings of both. She assisted him in his work, and he assisted her more or less in hers. The fact that the defendant made the contract with both, and that the work was to be performed at the same time and place and under the same circumstances, indicates that each in a way was to act with the other in the performance of the duties required by the contract which they had made, and that each was to render assistance to the other in carrying out the contract. The fact that after the husband's death the wages formerly paid to both were paid to her, and that she continued to reside in the house, employing such assistance as she desired at her own expense, indicates that in a way the work in and about the office building was treated as one job. We must assume that the parties did not contemplate that the work called for by the agreement was to be done by each as a stranger to the other, and to the work of the other. The husband and wife, in a way, in the making and execution of the contract, were treated more as one person than as two separate employees, who were strangers to each other and were engaged in separate jobs. A single contract provided that all the work mentioned at the office was to be performed by this family, and it mattered little who did a particular service, or whether each did a particular part of a particular service. As head of the family, and a party to this agreement, the husband was charged with a certain duty with reference to the laundry, and apparently under the contract it was fairly within the purport of the agreement that the laundry, the soup, and other materials were to be carried back and forth, when necessary, without regard to which

one of the contracting parties carried them. If either performed the work, the contract was being fairly performed. We cannot say that that duty devolved upon the wife as cook and meal server any more than it devolved upon him as the person having the general charge of the office building and restaurant. He may have carried the basket to relieve his wife from the burden; but it was his right and duty towards her, and it was his right and duty towards the employer, to see that the basket was properly delivered at its destination.

If we assume that the wife was carrying the laundry from her house to the restaurant, and another employee, en route for the office to begin his work, as an act of courtesy, had taken her burden at the street line, and, while taking it, had been killed by the wire, he would be within the terms of the act. Matter of Waters v. Taylor Co., 218 N. Y. 248, 112 N. E. 727, L. R. A. 1917A, 347; Matter of Martucci v. Hills Bros. Co., 171 App. Div. 370, 156 N. Y. Supp. 833. It is difficult to see how the husband can be treated otherwise. In Leslie v. O'Connor & Richmond, Incorporated, 220 N. Y. 672, 116 N. E. 1057, the injured employee was the manager of a livery stable. The third and fourth floors above the stable were used as tenements, the top floor was occupied by him, and he, "while going down stairs from his apartment, fell and cut his forhead." It was held that the injury arose out of and in the course of his employment. In that case we find from the record that the employee at first received his wages and paid for the apartments, but later he was not charged for the apartment; in other words, his salary was increased by the amount he had been paying in rent.

In this case, while the employees paid for the use of the house, the fact remains that none but employees could be housed at the plant. They were occupying it, so that they would be at all times near the office building to attend to their duties. The occupation was for the direct convenience and profit of the employer. If they had not paid rent, they probably would have received $10 per month less compensation. Whether they received full wages and paid for the housing, or had less wages and were housed free, is immaterial, as it does not change substantially the relation of the parties. The husband and wife were the employees of the defendant, and as a part of their contract were to be housed on the premises, and he has met his death by a hazard of the employment. Refinements as to the technical relation of the parties are not necessary or profitable.

We have seen that the authorities distinctly hold that, if an employee is injured in a hazardous employment upon the premises of the employer, while going to or from his employment, he is within the law. He must equally be within the law if, while going to the plant, he is injured solely by a hazard arising from and connected with its operation. If we assume that an employee, en route to the plant to begin work, is injured by an explosion

at the plant, resulting from a hazard of the business, just before he arrives upon the property of the employer, it would seem that his injury would be compensable. Ordinarily it is quite immaterial whether the injury is at the plant or upon the property of the employer. The question is: Did the injury arise out of and in the course of the employment? If the employee is away from the plant while performing a duty relating to his hazardous employment, he is within the law. Where it is held that an employee is within the act while going to his work and receiving an injury while on the premises of the employer, where the injury does not arise from the hazard of the business, his presence upon the premises is necessary to justify the conclusion that the injury arose out of and in the course of the employment. But if the employee is injured while going to his work, and from a hazard of the employment itself, it is immaterial upon whose premises the accident happens, for he is within both the letter and the spirit of the law.

But if we are to give the matter a more technical consideration, we may well say, when we are speaking with reference to the electric wire and the current carried by it, that the defendant, in the operation of its plant, was in possession of the place where the decedent was killed, and that the right of the decedent in the premises was a mere housing, which gave him no independent rights in the lot in conflict with the use the employer was asking of the premises. He and the employer each had a partial use of the lawn. If we treat the decedent as a tenant, it is only in a qualified sense, and not in a way to free the defendant from liability. If, after hours, the employee, while sitting at his stove, had been killed by the fall of the chimney of the house, a different question would arise. The operation of the plant and the risks of the employment would not then have contributed to the injury. There would then be a question whether a landlord's duty had been performed towards him. The chimney had no use, except as a part of the house, and had no connection with the plant or its operation. Quite probably such an injury would not arise out of and in the course of the employment. But the electric light wire was not embraced in the occupancy. The decedent was in no way connected with the wire or its use; the wire was there only as a part of and an instrumentality of the plant, and while there subjected him at all times to the risks of the employment, which were distinct from any risk growing out of or connected with the house or lawn. The operation of the plant alone caused his death; if the plant had been shut down, no injury could have befallen him. The wire was maintained and the current sent through it by his employer, in its capacity as such, and not as an owner of the house. As the electric wire and current related solely to the plant outside of the premises occupied by the plaintiff and her husband, the premises must be considered as a part of the plant when we speak of them with reference to the elec

tric wire and current. It is not quite clear, and perhaps not very material whether there was a sidewalk in front of the premises, and whether the wire was between the sidewalk and the road, or on the lot at the roadside. Whether it was, it was not a part of the premises occupied by the decedent, but was a part of the employer's premises. This law gives compensation without regard to fault, and in determining whether a case is fairly compensable we are to lay aside the question of fault and consider that the rule of the case will apply to other cases where there can be no remedy outside of this law. There is less confusion if we consider the case without regard to fault, and assume that no liability exists unless the case is within this law. We are not constructing the law against the employee or his widow. The case may not be free from doubt, but a rule must be established which will be enforced equally in cases where there is negligence and in cases where there is none, so that the statute must have a broad and liberal interpretation for the benefit of the employee as well as the employer, and to bring within its provisions cases fairly within its spirit. The object of the law was to charge upon the ultimate consumer the losses from accident which would otherwise fall upon the injured employee, to give the employee a speedy and sure remedy, and to save the employer who complies with it from other claims and actions. It was known that the ordinary action to recover damages was unsatisfactory, resulting in delays and expenses, frequently was disastrous to the employer or employee, and often to both. This statute was intended to do away with the delays and uncertainties, and to provide a remedy which may summarily be adminstered. The act wisely provides that the question of faults does not enter into the merits of the claim. For that reason we have not considered, and it is unnecessary to consider, whether or not actionable negligence has been shown. That is beside the question. The only question is: Do the facts, assisted by the presumption that the claim is within the Compensation Law, entitle the wife to compensation thereunder? In my judgment, she was entitled to compensation, and for that reason cannot maintain this action.

The judgment and order should therefore be reversed, and the complaint dismissed, with costs.

Woodward, J., concurs.

SUPREME COURT OF NEW YORK.

APPELLATE DIVISION, THIRD Department.

SANTACROCE

ຍ.

SAG HARBOR BRICK WORKS.

IN RE TRAVELERS' INS. CO.*

WORKMEN'S COMPENSATION—“ACCIDENTAL” INJURY—EVIDENCE.

Evidence that a brickmaker, previously in good health, when attacked by vertigo or some similar disorder while on a brick pile some 15 feet above the ground, fell and was injured, held to sustain the Industrial Commission's finding that his injury was accidental, within the Workmen's Compensation Act (Consol. Laws, c. 67).

Appeal from State Industrial Commission.

Proceeding under Workmen's Compensation Act by Nuncio Santacroce against the Sag Harbor Brick Works, employer. and the Travelers' Insurance Company, insurance carrier. From an award, the employer and insurance carrier appeal. Affirmed.

Argued before JOHN M. KELLOGG, P. J., and LYON, WOODWARD, COCHRANE, and HENRY T. KELLÖGG, JJ.

Amos H. Stephens, of New York City (E. Claude Sherwood, of New York City, of counsel), for appellants.

Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City (E. C. Aiken, Asst. Atty. Gen., of counsel), for the Commission.

JOHN M. KELLOGG, P. J. The claimant, a brickmaker, was required to perform his duties while standing on a pile of brick about 15 feet above the ground. He was seized "with an attack of vertigo, or with some similar disorder, which caused him to fall to the frozen ground." It is urged that his injury was the result of the vertigo, and not of an accident; but the findings and proceedings indicate that he was in good health at the time, and no reason is given for the fall except the dizziness. The natural inference is that the dizziness, the fall, and the injury resulted from the elevated position in which he was standing while performing his work.

Appellants rely, apparently with confidence, upon Matter of Collins v. Brookly Union Gas Co., 171 App. Div. 381, 156 N. Y. Supp. 957. In that case the superintendent, who was standing upon the street, fell to the ground and received his injury. There was no apparent cause for the fall, aside from an attack of cardiac syncope, to which the previous condition of his heart * Decision rendered, Mar. 6, 1918. 169 N. Y. Supp. 695.