stance rather than the form, and that it had in mind the beneficiaries rather than the legal representatives, as that term is ordinarily understood. It did not remit the dependents of an employee, unless they, or the parent or other person authorized to speak for them, wished, to the hazards of a litigation which might be protracted and fruitless. It was enacting a workable statute to promote an important reform in jurisprudence. To make the procedure simple and inexpensive, the creator of statutory guardians dispensed with them. In the same effort to effect inexpensiveness and simplicity, it eliminated legal representatives and created another statutory agent to act in behalf of infant beneficiaries. We have examined the other points of the appellant in which error is assigned, but we do not think it is necessary to discuss them. The judgment and order should be affirmed, with costs. concur. SUPREME COURT OF NEW YORK. ROSS ET AL. VS. GENESEE REDUCTION CO. IN RE UNITED STATES FIDELITY & GUARANTY CO.* WORKMEN'S COMPENSATION ACT-INJURY "ARISING IN COURSE OF EMPLOYMENT." An employee of a garbage reduction company, who drove one of its collecting wagons and did extra work in helping to load a fertilizer known as "tankage" into cars, and who, while on such extra work, went upon the roof of a building and, while attempting to pull down a rope used in hoisting materials, fell through a skylight and was killed, suffered an "injury in the course of his employment," within the Workmen's Compensation Act (Consol. Laws, c. 67); the fact that he could have accomplished the work without such particular effort being immaterial. Appeal from State Industrial Commission. In the matter of the claim of Antoinette Ross, widow, and others, children, of a deceased employee, against the Genesee Reduction Company, employer, and the United States Fidelity & Guaranty Company, insurance carrier. From an award of the State Industrial Commission, the employer and the insurance carrier appeal. Award affirmed. Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ. * Decision rendered, Dec. 28, 1917. 168 N. Y. Sup. 51. Carnahan. Adams, Jameson & Pierce, of Rochester (George A. Carnahan, of Rochester, of Counsel), for Appellants. Merton E. Lewis, Atty. Gen., Robert W. Bonynge, of New York City, Counsel to State Industrial Commission (E. C. Aiken, Deputy Atty. Gen., of counsel), for Respondents. WOODWARD, J. The employer in this case was engaged in collecting and reducing garbage, and, as an incident of this business, it sold a fertilizer known as "tankage." The claimant's intestate was employed in driving one of the garbage collecting wagons, and did extra work in helping to load the tankage into cars three or four times a week. On the day of the accident resulting in his death, he was employed in this extra work, and went upon the roof of a building, operated by the employer as a part of the plant, and while there, attempting to pull down a rope used in hoisting materials, he fell through a skylight and was killed. The appellant makes an elaborate argument to show that the decedent was not injured in the course of his employment-the theory being that it was not necessary for the decedent to be upon the roof; that he was not required to pull down the rope, as it would fall of its own weight if given time enough. The reasoning is altogether too refined for the very practical results sought to be attained by the Workmen's Compensation Law. The decedent was in the employ of the Genesee Reduction Company at the moment of the accident, and the question of whether he was doing the work in exactly the best manner is not material. It is not seriously questioned that the act which he attempted was designed to facilitate the work of the master, and the fact that it could have been accomplished without this particular effort is not controlling. We are not dealing with the law of negligence; we are considering a system which attempts to compensate for injuries received in the actual performance of duties in hazardous employments, without regard to negligence, and so long as the employee is engaged in the actual service of the master, as distinguished from the personal purposes of the employee, he is entitled to the provision which the law makes for him as an employee. The award should be affirmed. All concur. SUPREME COURT OF NEW YORK. IN RE PRENTICE PRENTICE VS. NEW YORK STATE RYS.* WORKMEN'S COMPENSATION-COMPUTING ANNUAL WAGES. The number 300, used in Workmen's Compensation Law (Consol. Laws, c. 67) § 14, providing that to arrive at the annual wage, the average daily wage be multiplied by 300, is not arbitrary, and does not apply to one who works seven days per week or less than six, who comes under subdivision 3; and it was proper to use the number 332 for one working seven days per week, in the absence of any showing that it was unfair, but the Industrial Commission cannot arbitrarily fix any particular number for all classes of persons. Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Law by La Mont Prentice for compensation for injuries, opposed by the New York State Railways, employer and self-insurer. From an award by the State Industrial Commission, the employer appeals. Affirmed. Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ. Kernan & Kernan, of Utica (Warnick J. Kernan, of Utica, of counsel), for Appellant. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission. Lynch, Willis & Titus, of Utica (Emerson M. Willis, of Utica, of counsel), for Respondent. COCHRANE, J. This appeal involves the proper application of section 14 of the Workmen's Compensation Law, in a case where the claimant has worked seven days a week for practically an entire year before the accident. The section provides methods for determining the average annual earnings and the average weekly wages as a basis upon which to compute the compensation. Subdivisions 1 and 2 of the section provide that in cases included within such subdivisions the average annual earnings shall consist of 300 times the average daily wage or salary. The number 300, used in those subdivisions, is not an arbitrary selection, but was evidently selected because it bears an approximately close relation to the number of working days in a year, Sundays and holidays excluded. Manifestly, where an employee works seven * Decision rendered, Dec. 28, 1917. 168 N. Y. Supp. 55. days a week for substantially an entire year, the method of determining his average annual earnings, indicated in either subdivision 1 or 2, would be an injustice to him, just as much as it would be an injustice to the employer to apply those subdivisions to a case where the injured employee has worked less than six days a week for a substantial period of time. The claim here falls more appropriately within subdivision 3 of the section, which provides for a case where "either of the foregoing methods of arriving at the annual average earnings of an injured employee cannot reasonably and fairly be applied." The commission properly determined that this claim falls within subdivision 3. The remaining question is: Was a correct method used in applying that subdivision? The commission made use of the multiplier 332, instead of 300, as fixed by the first two subdivisions, and multiplied the daily wage of the claimant, which was $3, by 332, to ascertain his annual earnings, and divided the product by 52, to ascertain his average weekly wages, as provided by subdivision 4 of the section. It appears that the commission has adopted a rule to use the number 332 in the case of claimants working seven days a week. That number could not properly be arbitrarily selected. But it will be presumed that, by examination, observation, and investigation, the commission has ascertained, as required by subdivision 3, that, "having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment in the same or neighboring locality," the number 332, used as it was here, accomplishes a result which, in the case of claimants working seven days a week, "shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident." Subdivision 3 does not concern alone seven-day workers, but includes all cases not included in subdivisions 1 and 2, and if, with due regard to the requirements of subdivision 3, the commission has ascertained that the method adopted in this case works out a fair and reasonable result, such method is protected by the statute. Certainly, on the face of it, the number 332 is no more favorable to a claimant working seven days a week than the number 300 is to a claimant working six days a week. Furthermore, the exact earnings of the present claimant for the year preceding the accident amounted to $986, which is approximately the amount ascertained by the commission by multiplying his daily wage of $3 by 332. The appellant does not seem to have, therefore, a substantial grievance. The award should be affirmed. All concur. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD Department. SOLOMON VS. BONIS. IN RE GENERAL ACCIDENT, FIRE & LIFE ASSUR. CORP.* WORKMEN'S COMPENSATION ACTS. Where the servant was employed casually, not under contract, but on various odd jobs, as a plasterer in repairing a building for defendant, who owned and operated an apartment house, he was not in the employ of the company in a business declared hazardous by the Workmen's Compensation Law. Lyon and Woodward, JJ., dissenting. Appeal from State Industrial Commission. Application by Hyman Solomon for compensation under Workmen's Compensation Law, opposed by Samuel Bonis, employer, and the General Accident, Fire & Life Assurance Corporation, insurer. From an award in favor of the applicant, the employer and insurer appeal. Reversed, and claim dismissed. Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ. Alfred W. Meldon, of New York City (Lindsay D. Holmes, of New York City. of counsel), for Appellants. Merton E. Lewis, Att. Gen., and Robert W. Bonynge, of New York City, for the Commission. David Harrison, of New York City, for Claimant. KELLOGG, P. J. The findings show that the employer was the owner and operator of an apartment house. "There was some plastering to be done in one of the bathrooms in said apartment house, and (Bonis) the employer, sent for Solomon to come to do the plastering at 75 cents an hour, and directed him to purchase whatever material was needed and to pay for the same, and agreed to reimburse him for such outlay. The total payment made by Bonis to Solomon in respect to this work was $3. It was customary for Bonis to send for Solomon whenever he had any plastering work to be done, and to pay Solomon on the abovementioned basis." While plastering Solomon fell and received the injury for which compensation has been made. Matter of Bargey vs. Massaro Macaroni Co., 170 App. Div. 103, 155 N. Y. * Decision rendered, Nov. 28, 1917. 168 N. Y. Supp. 676. |