be held, upon the jurisdictional question of an existing contract of employment, that the Commission should find the facts from which the court may properly determine that the relation exists, and these facts should find some reasonable support in the evidence, for the contract between the insurance carrier and the insured is based upon the existence of the relation of employer and employee, and the insurance carrier should be entitled to competent evidence to show that the case is brought within the provisions of its contract.

Tried by this standard, we think the conclusions of fact made by the Commission fail to show that the relation of master and servant existed between Philip J. Benjamin and Rosenberg Bros. at the time of this accident. We do not find any evidence that the firm of Rosenberg Bros. employed a salesman, Philip Rosenberg, a brother of the members of the firm. The only fair inference from the evidence is that Philip Rosenberg took goods from his brothers' firm and peddled them about the country, and that whatever profit he made upon the goods belonged to him, while he was credited with the goods which he returned. The fact that Philip Rosenberg kept an expense account, and that he was reimbursed the amount of his expenses, if this was a fact, does not show that he was an employee or agent of Rosenberg Bros. in the hiring of the claimant; it is merely an unexplained detail of the arrangement between Philip Rosenberg and his brothers, who merely sold goods to him and permitted him to make a profit upon the same over and above the cost of the goods, plus the alleged expenses of Philip Rosenberg.

The Commission, in its conclusions of law, tells us, not that Rosenberg Bros. entered into a contract of hiring with Benjamin, but that prior to a given date

"it was suggested by the firm of Philip Rosenberg that he could probably sell more goods if he had some one to work with him, and Philip Benjamin was told by the firm to see Philip Rosenberg, and if possible to come to some arrangement for working with him. Philip Rosenberg thereupon met Benjamin and agreed to take him on his route and pay him $25 per week and expenses. This arrangement was to be tried out a couple of weeks, and then, if satisfactory, to be continued. The expense of the salary and traveling expense of Benjamin was in turn charged by Philip Rosenberg against Rosenberg Bros. and allowed by them in the same manner as other expenses. The contract of employment herein was made in the state of New York."

But there is no finding that the contract of employment was made within the state of New York by Rosenberg Bros. On the contrary, it appears that the contract was made by Philip Rosenberg, not at the command of the firm, but as its suggestion. Rosenberg Bros, did not assume to say to Philip Rosenberg that he must employ Benjamin; they merely suggested to each of the parties that it might be an advantageous arrangement, and

left it with them to determine whether the suggestion should be carried out. It was Philip Rosenberg who determined whether he would employ Benjamin and the amount of his compensation; and the fact, if it be a fact, that he subsequently received reimbursement for this additional expense from Rosenberg Bros., did not make a contract of employment with that firm, which does not appear to have had any control over the employment, its terms, or its duration. In other words, Philip Rosenberg was the only man who appears to have had any power to employ or discharge Benjamin; he was the only one who appears to have had anything to do with the determination of these matters, or with the amount of the compensation; and in the absence of any evidence to show that he acted as the agent of Rosenberg Bros. in the employment of Benjamin we are unable to discover any ground for holding the insurance carrier for injuries sustained by Benjamin while in the employ of Philip Rosenberg. There were several members of the firm of Rosenberg Bros.; they appear to have known Benjamin. They had an opportunity to employ him if they saw fit, but they contented themselves merely with advising Benjamin to see Philip Rosenberg and to make an arrangement with him, if possible, and the latter appears to have entered into a contract of employment with Benjamin.

The insurance carrier never contracted to become responsible for injuries to the employees of Philip Rosenberg, and its liabilities should not be increased by any strained construction of the statute, nor by any mere sophistical reasoning. If Rosenberg Bros. actually employed Benjamin, the proof ought easily to be made to appear, as they seem anxious to relieve Philip Rosenberg from his liability for the injuries sustained by Benjamin. A jurisdictional fact of this importance, going to the very essence of the contract between Rosenberg Bros. and the insurance carrier, ought not to rest on mere conjecture; the conclusion of law should be based upon definitely established facts, and these the Commission has failed to display in its record.

Without going into an analysis of the evidence, it is enough for the purposes of this appeal that the Commission has not attempted to find the facts which the courts have repeatedly held to be essential to the establishing of a contract of hiring. It has nowhere found that the contract of employment was made by and between Rosenberg Bros. and Philip J. Benjamin, or that Rosenberg Bros. had any control over the hiring or discharging of this man, or the amount of his compensation or the duration of his employment. These all appear to have been under the control of Philip Rosenberg, who is not shown to have been the agent of Rosenberg Bros. for this or any other purpose. When the Commission has been able to discover in the evidence grounds for finding these essential facts, and has found them, it will be time enough to inquire whether the evidence supports such findings. In the meantime we are of the opinion that the award

should be reversed, and the matter returned to the Commission for such further action as it may deem proper in the premises, consistently with this opinion.

The award should be reversed, and the matter sent back to the Commission for further consideration.

Sewell, J., concurs.

SUPREME COURT OF NEW YORK.

APPELLATE DIVISION, THIRD DEPARTMENT.

LANAGAN

VS.

TOWN OF SAUGERTIES,

IN RE TRAVELERS' INS. CO.*

WORKMEN'S COMENSATION LAW-HAZARDOUS OCCUPATION "HAZARDOUS”—“EMPLOYER”—“EMPLOYEE."

Assisting in procuring men and materials for the work is fairly incidental to the employment of a foreman of road construction for a town, entitling him to award under Workmen's Compensation Act (Consol. Laws, c. 67), for injury received while so assisting; the occupation of road construction carried on by the town being "hazardous" (section 2, groups 13, 43), the town represented by its superintendent of highways being an "employer" (section 3, subd. 3), and the foreman, being engaged in a hazardous occupation, being an “employee" (section 3, subd. 4).

Kellogg. P. J., and Sewell, J., dissenting.

Appeal from State Industrial Commission.

Proceeding under Workmen's Compensation Law by Michael Lanigan for compensation for personal injury, opposed by the Town of Saugerties, employer, and Travelers' Insurance Company, Insurance carrier. From an award by the State Industrial Commission, the employer and insurance carrier appeal. Affirmed.

See, also, 167 N. Y. Supp.

Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ.

Amos H. Stephens, of New York City (E. Clyde Sherwood and Wm. B. Davis, both of New York City, of counsel), for Appellants.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for Respondent.

Robert W. Bonynge, of New York City, for State Industrial Commission.

* Decision rendered, Nov. 28. 1917. 167 N. Y. Supp. 654.

Vol. I-Comp. 44.

LYON, J.

The State Industrial Commission has found as conclusions of fact that in September, 1916, the town of Saugerties, Ulster County, N. Y., was engaged in the construction, repair, and maintenance of highways and bridges within the town; that the claimant, Michael Lanigan, was employed by the town as a foreman on the work; that his superior was Raymond Ten Broeck, the town superintendent of highways, who had authority to employ and discharge all employees and to purchase the materials necessary for the work; that said superintendent and claimant usually planned the work together, and on Sundays laid out the work for the coming week; that the scarcity of labor compelled the superintendent to work short-handed; that on September 24th, being in need of laborers in order to start a stone crusher the next day for use in road building, and Sunday being a favorable day for hiring laborers, and being also in need of sluice pipe for road work, said superintendent, who on Saturday had directed claimant to report to him on Sunday, went, pursuant to appointment, in an automobile owned, operated, and used by him. in his employment as superintendent of highways, to meet a man for the purpose of purchasing some sluice pipe; that from there they started for the claimant's house, where they were to have supper and then go down to engage laborers, whom claimant knew, for the following day's work; that while traveling along the highway at dusk a flash of light, apparently from an approaching automobile, blinded them, and in attempting to avoid a collision their automobile was steered from its course and collided with the fence along the highway, wrecking the car, killing Ten Broeck, and severely injuring the claimant; that the claimant was paid for each day of actual work, including Sundays; and that two of the path masters had also worked on Sundays and had been paid therefor upon presentation of their bills. The commission also found that the claimant was an employee of the town within the meaning of the Workmen's Compensation Law, and make the award in his favor from which this appeal has been taken. In view of the contention that the law does not apply to the claimant, it has seemed best to thus fully recite the findings of the commission which are supported by the evidence.

At the time of the accident, the occupation of road building carried on by a town was a "hazardous occupation." Groups 13 and 43. The town represented by its superintendent of highways was an "employer" Section 3, subdiv. 3. Claimant being engaged in a hazardous occupation was an "employee." Section 3, subdiv. 4. Assisting in procuring men and material for the performance of the work was incidental to claimant's employment as foreman. It would seem therefore that the case is at least fairly within the decision in Larsen vs. Paine, 218 N. Y. 252, 112 N. E. 725, in which it was said:

"Where, as in this case, an employee is injured while perform

ing an act which is fairly incidental to the prosecution of a business and appropriate in carrying it forward and providing for its needs, he or his dependents are not to be barred from recovery because such act is not a step wholly embraced in the precise and characteristic process or operation which has been made the basis of the group in which employment is claimed."

I think the award should be affirmed. All concur, except Kellogg, P. J., and Sewell, J., dissenting.

SUPREME COURT OF NEW YORK.

APPELLATE DIVISION, SECOND Department.

HANKE

VS.

NEW YORK CONSOL. R. CO.*

1. WORKMEN'S COMPENSATION ACT-ELECTION.

Under Workmen's Compensation Act (Consol. Laws c. 67) § 29, providing for election between remedies when employee is injured or killed by negligence of another not in the same employ and for subrogation if compensation is paid a widow with dependent child may for herself and child make an election.

2. WORKMEN'S COMPENSATION ACT-ELECTION.

Workmen's Compensation Act, § 29, providing for election between remedies when employee is injured or killed by another's negligence, and for subrogation if compensation is paid, but not specifically providing for election by minors, was merely clarified, and not substantially altered, by Laws 1916. c. 622. § 7, providing for election of remedies by minors. or their parents or guardians, as the commission determines.

Appeal from Trial Term, Kings County.

Action by Caroline Hanke, as administratrix of Antonio Hanke, deceased, against the New York Consolidated Railroad Company. Judgment on directed verdict for defendant, and plaintiff appeals. Affirmed.

Argued before Jenks, P. J., and Thomas, Stapleton, Rich, and Blackmar, JJ.

Ralph G. Barclay, of Brooklyn, for Appellant.

Harold L. Warner, of New York City (D. A. Marsh, of Brooklyn, on the brief). for Respondent.

STAPLETON, J.

The death of plaintiff's intestate occurred while he was in a hazardous employment. His employer was the Transit Development Company, a domestic corporation. A verdict was directed

Decision rendered, Dec. 21. 1917. 168 N. Y. Supp. 234.

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