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§ 10. Non-hazardous employments. The employments which are subject to the compensation act have been treated upon brifly in Section 3. As stated by Supreme Court Justice Geo. F. Lyon in the Matter of Newman vs. Newman, "the benefits of the workmen's Compensation Act are restricted to injuries or death incurred by employees engaged in one or more of the specified hazardous employments." The employments which are not thus specified may be designated as non-hazardous employments.

The distinction between the two classes, hazardous and non-hazardous, is explained in the leading case, Matter of Gleisner vs. Gross & Herbener. Speaking of hazardous employments, the Court said, “If an employee is hired for work falling exclusively or predominantly within one or more of the enumerated occupations, his right to compensation for injury in the course of his employment cannot fairly be made to hinge on a finding that he was, at the moment of injury, engaged in an act clearly constituting the direct doing of work named in the act," and in another place, "If an employee's duties are exclusively or predominantly within an enumerated employment or employments, and he is injured while doing work fairly within the scope of the ordinary and accustomed fulfilment of such duties, he has a rightful claim, even though the particular act he was doing when mishap befell him, would not, of and by itself, ordinarily be described by the use of phraseology contained in the statute or as the doing of work enumerated in the statute." It is not to be assumed from this quotation that every employee working in a designated hazardous employment is subject to the compensation law or that every injury is compensatable for, as stated by the same Court, and as appears by the sections of this work which follows:

"The Legislature has not attempted to impose upon employers the obligation of insuring their employees generally against accident."

1169 App. Div. 745; 155 N. Y. 2170 App. Div. 87; 155 N. Y. Supp. 665. Supp. 946.

In the Gleisner case, the employee was a janitor. Neither this class of work nor the business of his employer is declared hazardous. The employee, however, also performed general repair work and at times was engaged in the operation of a boiler. Upon the appeal from an award made by the Commission, the point of the case was stated by the Court in the following language:

"The whole question here at issue is whether at the time the claimant met with mishap, he was doing work and engaged in an employment which the Legislature has designated as 'hazardous' and so has brought himself within the purview of the new system of compensation for industrial accidents created by the Workmen's Compensation Law." and speaking of the employee's right to compensation, the Court stated that

"If, within the scope of his duties, he was injured while actually and unmistakably doing, at the moment, work of a kind specifically defined as ‘hazardous,' his right is clear."

and the award of compensation was reversed because, at the time of the accident he was not performing hazardous work. After referring to employments which are mentioned in the Act, the Court laid down the following rule, which applies to non-hazardous employments:

"Where, however, as apparently here, the employee's ordinary duties and accustomed scope of activities do not come exclusively or predominantly within the category of enumerated employments, and only casually and incidently does he do work fairly falling within that category, his right to remuneration must hinge on a finding that he sustained injury while actually and momentarily doing work named in the statute."

Matter of Newman vs. Newman is also a case in point in relation to non-hazardous employment. The injured workman was employed in a retail meat market as a driver on a delivery wagon. He also worked in the store waiting on trade and made deliveries on foot. In dismissing the award of compensation, the Court said: "He

had put his horse up several hours before, and was engaged in the occupation of a deliveryman on foot. This occupation was not included in any of the groups of hazardous employments, nor was it on this occasion a part of, or in any way connected with, a delivery by horse and wagon, nor can it be said, under the circumstances, to have been a risk incidental to a hazardous employment.

It follows from the foregoing that an employer who is engaged in a business which is not named in Section 2 of the Act is subject to the payment of compensation where his employees are doing work named in the statute but at all other times is liable to suits for damages under the old rule of law as between master and servant.

§ 11. Casual employments. In the Matter of Bargey vs. Massaro Macaroni Co., 170 App. Div. 103; 155 N. Y. Supp. 1076, it was decided that workmen employed occasionally to do repairs upon a plant where a hazardous employment is carried on are excluded from the compensation law. In the case in question, the employer was engaged in a business that was classified as hazardous under the compensation act. The claimant's husband was hired as a carpenter to erect a partition in the plant. In deciding the case and reversing the award made by the commission, the Court said:

"He was not in the general employ of the company, but was the man it usually employed to do little odd jobs about its building. He never did any work in the macaroni business; his only work for the defendant was doing work upon or about its buildings. I do not think he was an employee in a business declared hazardous by the Workmen's Compensation Law. Clearly, he was not engaged in the macaroni business, but his job was as a carpenter. The company was not carrying on the carpenter business or doing any carpenter work for a profit; it was making repairs and improvements on its real estate and hired a general workman for that purpose."

Prior to this decision the Commission had ruled that

carpenters, painters and other mechanics, employed occasionally by a person not engaged in a hazardous employment, were subject to the compensation law. In the Bargey case, the Court expressly held that such employees are not within the benefits of the compensation act. The Court recognized that where a regular employee is performing work which is not hazardous in itself but is incidental to the general work carried on by the employer, such work may be considered as part of the hazardous employment, and it was then stated, "but where a man engages a carpenter by the hour to do some work upon his premises in the way of improvements, I cannot feel that he is engaged in the hazardous employment of structural carpentry or repair of buildings as contemplated by Group 42 of the law." The decision in this case is supported by the fact that only a few of the 42 groups contain the word "repair" from which it would appear that the Legislature intended to exclude repair work except where it is expressly mentioned.

The tenor of this decision is to place carpenters, painters and employees in trades similar thereto under the compensation law only when such persons are in the employ of one whose business is that of carpenter work, painting or the like. A mechanic of this character employed casually by the day by a manufacturer or other employer is not under the Compensation Law. The employer is still liable to such employees for negligence and in the Bargey case, after compensation was denied, suit was brought for damages under the law as it existed before the compensation law was enacted. The Bargey case was followed by the Commission in a decision rendered February 10, 1916, in Claim No. 14407, McComsey vs. Simmonds (The Bulletin, Vol. 1, No. 6, p. 13), in which the workman received injuries while painting a barn for his employer.

An attempt has been made to meet the decision in the Bargey case by amending the definition of the term "employee" and by adding a new subdivision to Section 3 of the act under which the words "manufacture," "con

struction," "operation" and "installation" are defined as including repairs. These amendments do not, however, meet the point raised by the Court to the effect that a company engaged in the manufacturing business is not carrying on the carpentry business for pecuniary gain when it employs a carpenter to make repairs to its place of business.

§12. Salesmen. The Commission has ruled that salesmen who are required to work or report at the plant where the hazardous employment is carried on are subject to the compensation law whether the injury happens at the plant or while the salesman is travelling. Employees of this character are to some extent subjected to the risk of the hazardous employment while on the premises and the Commission's ruling regarding accidents at the plant appears to be sound. An award was upheld where a salesman in the employ of a clothing manufacturer received an injury by falling from a ladder while looking at a price ticket on a piece of cloth which was to be used in making a suit of clothes.' The widow of a sales manager was held entitled to compensation by reason of a fatal injury which the employee received by falling on the stairs while passing from the floor where the manufacturing was conducted to the upper floor where the office was situated."

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Where the injury is received away from the plant, the salesman is subject to no greater risk than one travelling for the ordinary Lercantile establishment. When the injury is received while installing machinery which the employee has sold, compensation is payable, but where, as in the Matter of Sickles (Sec. 7 infra.), the injury happens on the road and has no connection with the risk of the hazardous employment, the compensation law has no application. In the Sickles case the employer conducted a storage business, which is classified as hazardous un

'Matter of Berlinger vs. Ritchie & Cornell, Aff. 156 N. Y. Supp. 1115. (Without opinion.)

2 Matter of Nicholson vs. Klipstein & Co., Aff. 155 N. Y. Supp. 1127.

(Without opinion.)

Matter of Benton vs. Fraser, Aff. 156 N. Y. Supp. 1115. (Without opinion.)