approval of the commission one of the methods of securing compensation to his employees prescribed in section fifty of this chapter which, when so filed with and approved by the commission as to form and method of securing compensation shall operate to subject him to the provisions of this chapter and of all acts amendatory thereof for the period of one year from the date of such approval, and thereafter without further act on his part for successive terms of one year each, unless such employer shall, at least sixty days prior to the expiration of such first or any succeeding year, file with the commission a notice in writing that he withdraws his election.

Any employee in the service of any such employer shall be deemed to have accepted, and shall be subject to the provisions of this chapter and any act amendatory thereof, if, at the time of the accident for which liability is claimed, the employer charged with such liability has not withdrawn his election and the employee shall not at the time of entering into his contract of hire have given to his employer notice in writing that he elects not to be subject to the provisions of this chapter and filed a copy thereof with the commission, or in the event that such contract for hire was made in advance of the election of the employer, such employee shall not have given to his employer and filed with the commission within twenty days after such election notice in writing that he elects not to be subject to such provisions.

A minor employee shall be deemed sui juris for the purpose of making such an election.

The rights and remedies, benefits and liabilities of an employer or employee so electing to become subject to the provisions of this chapter shall thereupon become the same as they would have been had they been engaged in one of the occupations or employments enumerated herein and the words employer or employee wherever they appear in this chapter shall be construed as including an employer or employee who has so elected to become subject to its provisions. (The above portion of Section 2 relating to employers and employees who may become subject to the compensation law, by their joint election, added by L. 1916, Ch. 622, effective June 1, 1916.)

The above elective provision should be read in connection with Article 14 of the Labor Law, printed in full in the Appendix. Any provision of such article of the

Labor Law inconsistent with the foregoing is repealed by L. 1916, Ch. 622, Section 15, effective June 1, 1916.

§3. Definition. As used in this chapter, 1. "Hazardous employment" means a work or occupation described in section two of this chapter.

The benefits of the compensation law are limited to the hazardous employments enumerated in Section 2.

De La Gardelle, Matter of vs. The Hampton Co., 167 App. Div. 617; 153 N. Y. Supp. 162.

Tomassi, Matter of vs. Christensen, 171 App. Div. 284; 156 N. Y. Supp. 905.

Undertaking and embalming is not included as a hazardous employment.

Claim No. 57508, Foley, Matter of vs. Peter F. Doran, Workmen's Comp. Com., March 29, 1915.

While an undertaker is not engaged in a hazardous employment, an employee working as a helper and driver of a vehicle is entitled to compensation under Group

41.

Claim No. 56433, John T. Hillary, Matter of vs. Kaufman Brothers, State Industrial Commission, Jan. 3, 1916. A wholesale dealer is not engaged in a hazardous employment and compensation was denied to the widow of a salesman and buyer, who was drowned by the sinking of the Lusitania.

File No. 449, Charles V. Mills, Matter of vs. L. B. Locke & Potts, State Industrial Commission, July 12, 1915.

The operation of theatres is not classified as hazardous and compensation was denied to the widow of a property man killed by falling through a trap door.

Claim No. 52437, Samuel Adler, deceased, Matter of vs. Thomashefsky Theatre Co., Workmen's Comp. Com. Compensation was also denied where a property man was injured by falling over some steps.

Claim No. 50284, Chas. O'Neill, Matter of vs. Booth Theatre, State Industrial Commission, Nov. 29, 1915.

The manager or superintendent of a hotel injured

while repairing the premises is not engaged in a hazardous employment.

J. Irving Godder, Matter of vs. Hartt, et al., State Industrial Commission, Feb. 9, 1916.

While the operation of a garage was not a hazardous employment prior to the amendments of 1916, which included the operation of a garage in Group 41, an officer of a company conducting such business, injured while driving an automobile was held entitled to compensation as engaged in the operation of a vehicle.

Claim No. 37170, Albert Keffer, Matter of vs. Yonkers Auto Repair Co., State Industrial Commission.

In the case of Aylesworth, Matter of vs. Phoenix Cheese Co., 170 App. Div. 34; 155 N. Y. Supp. 916, the Appellate Division held that ice harvesting was not a hazardous employment. Ice harvesting is now included in Group 25 under the amendments of 1916, effective June 1, 1916.

The operation of lumber yards was not expressly included as a hazardous employment until the amendments of 1916, which added this employment to Group 14, and in Claim No. 3181, Samuel Lepidus, Matter of vs. Empire City Lumber Co., decided January 26, 1916, compensation was denied where an employee was injured while unloading and piling lumber in a lumber yard.

2.

"Commission" means the state industrial commission, as constituted by this chapter. (Subd. 2 am'd by L. 1916, Ch. 622.)

3. "Employer," except when otherwise expressly stated, means a person, partnership, association, corporation, and the legal representatives of a deceased employer, or the receiver or trustee of a person, partnership, association or corporation, employing workmen in hazardous employments including the state and a municipal corporation or other political subdivision thereof. (Subd. 3 am'd by L. 1914, Ch. 316.)

An employer conducting a non-hazardous employment is not liable for compensation except where the injury is occasioned while the employee is engaged in work expressly declared hazardous by the Act.

Gleisner, Matter of vs. Gross & Herbener, 170 App. Div. 37; 155 N. Y. Supp. 946.

Newman, Matter of vs. Newman, 169 App. Div. 745; 155 N. Y. Supp. 665.

Where the employer is carrying on one employment which is hazardous and another employment which is not within the Act, no compensation is payable for an injury received in the latter employment.

Sickles, Matter of vs. Ballston Refrig. Storage Co., 171 App. Div. 123; 156 N. Y. Supp. 864.

Aylesworth, Matter of vs. Phoenix Cheese Co., 170 App. Div. 34; 155 N. Y. Supp. 916.

An employer repairing his building is not engaged in the business of repair of buildings or structural carpentry.

Bargey, Matter of vs. Massaro Macaroni Co., 170 App. Div. 103; 155 N. Y. Supp. 1076.

Where a person hires a wagon, team and driver and has control and direction over the work, the driver is an employee of such person, although employed and paid by the owner of the team and wagon.

Claim No. 25199, Gimber, Matter of vs. T. P. Kane Co., 2 N. Y. St. Dep. Rep. 475; Aff. 155 N. Y. Supp. 1109. (Without opinion.)

Claim No. 54558, Nolan, Matter of vs. Cranford Company, 4 N. Y. St. Dep. Rep. 337; Aff. 155 N. Y. Supp. 1128. (Without opinion.)

Where the owner of the team retains control over the driver, the owner is held to be the employer although the driver is performing work for another.

It seems that both the owner of the team and the person for whom the team is working may be regarded as employers and both may be liable for compensation.

Dale, Matter of vs. Saunder Brothers, 157 N. Y. Supp. 1062; App. Div., Third Dept., March 8, 1916; Aff. 218 N. Y. 59 (Court of Appeals, April 25, 1916.) Where the claimant was one of two brothers who called themselves co-partners and it appeared that the claimant received a share of the profits but worked on a salary and was not liable for debts it was held that the

claimant was an employee instead of a co-partner, and entitled to compensation.

Claim No. 63985, Walter E. Myerhof, Matter of vs. Myerhof Brothers, State Industrial Commission, Oct. 20, 1915.

In Claim No. 8567, Sol Turoff, Matter of vs. Archer Detective Agency and The United Fruit Co., where the detective agency furnished employees to the latter to perform longshore work, receiving a commission on the wages which were paid to the employees by the detective agency, such employees were held to be in the employ of the United Fruit Co., which had control over the work.

Where a firm of coal dealers employed a truckman at the request of a customer to deliver a load of coal, the truckman was held to be an employee of the coal dealers. Claim No. 52857. Christopher Beck, deceased, vs. Nichols & Webster, State Industrial Commission, Nov. 15, 1915.

Where there is a dispute as to the employer, the question involved is a question of fact upon which the decision of the Commission is final.

Dale, Matter of vs. Saunder Brothers, 218 N. Y. 59, (Court of Appeals, Apr. 25, 1916.)

4. "Employee" means a person engaged in one of the occupations enumerated in section two or who is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment upon the premises or at the plant, or in the course of his employment away from the plant of his employer; and shall not include farm laborers or domestic servants. (Subd. 4, am'd by L. 1916, Ch. 622, effective June 1, 1916.)

An employee receiving an injury in the course of his employment, where both the employee and the employer are residents of New York State and the contract of employment was made in this State, is entitled to compensation where the injury was received in another State.

Valentine, Matter of vs. Smith Angevine Co., 2 N. Y. St. Dep. Rep. 460; Aff. 216 N. Y. 544.

Post, Matter of vs. Burger & Gohlke, 153 N. Y. Supp. 505; 168 App. Div. 403; Aff. 216 N. Y. 544.