For affirmance: The Chancellor, the Chief Justice, Justices Parker, Bergen, Minturn, and Kalisch, and Judges White, Heppenheimer, Williams, Gardner, and Van Buskirk.

For reversal: None.

APPIGNANI ET AL. V. STATEN ISLAND RAPID TRANSIT CO. (New York Supreme Court, Appellate Division, Third Department. July 6, 1922)

195 New York Supplement, 195.

MASTER AND SERVANT-PARTIAL DEPENDENCY SUSTAINS COMPENSATION AWARD.

Partial dependency of mother and minor brothers and sisters will sustain an award for the death of an employee, who with his father con tributed for the support of the family.

(For other cases, see Master and Servant, Dec. Dig. § 388.)

Appeal from State Industrial Board.

Laws,

Proceeding by Sarafina Appignani, husband, and minor children, for compensation under the Workmen's Compensation Law (Consol. c. 67) for the death of Augustino Appignani, deceased, opposed by the Staten Island Rapid Transit Railway Company, employer, and self-insurer. From an award for the named claimant and minor children, opponent appeals. Affirmed.

Argued before Cochrane, P. J., and Henry T. Kellogg, Kiley, Van Kirk, and Hinman, JJ.

William J. Kenney, for appellant.

Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of

counsel), for respondents.

KILEY, J. The appellant is a self-insurer. Claimant's son and intestate was in its employ as a trainman. He had just passed his Ident was in the course of his employment. There were five younger twenty-first birthday. He was killed December 24, 1920. The accifamily. He had worked since he was 16 years old, and, outside of what was needed for his clothing, insurance premiums, and about $2 per week spending money, he handed in for the support of the family, which, after considering what his own board and room would be worth, amounted to about $700 a year. The accident, and that it was in the course of his employment and arose therefrom, is not ques tioned. Upon a formal hearing, had on March 15, 1921, and after

the father had testified, the following is recorded:

"Mr. Kenny (appearing for carrier): I guess that is all, Commis

sioner.

"Deputy Commissioner Archer: What is the employer's position

with respect to the case?

"Mr. Kenny: Why, I am willing you shold make a

reasonable

award for as much as you may see fit. We don't raise any question

about it."

There was no attempt made to set aside this concession or to modify its force; it ought to be decisive of this appeal. The railway

company appealed and asked for a rehearing; claimant was without counsel; a rehearing was had. In addition to the facts briefly set forth above, it was developed that the deceased's father owned a house, which he purchased through a building and loan association, and upon which, from his evidence, he owed about $1,000, or owed that gross amount of his actual indebtedness; that a total insurance of $2,250 was paid to the father, or his parents; that the father earned $6 per day.

The sole question raised is one of dependency. The evidence of the claimants is that they cannot meet their bills for support since the son's death. The insurance money was used to pay debts they had incurred some of it on account of the son's death. The record shows that the son's money was used for the legitimate support of this family. Under Hluboky v. Kopitz, 231 N. Y. 557, 132 N. E. 887, Hess v. Donner Steel Co., 230 N. Y. 596, 130 N. E. 908, Smith v. Mac Arthur Bros. Co., 233 N. Y. 537, 135 N. E. 908, and Eaton v. Metal Alloys, Inc., 233 N. Y. 537, 135 N. E. 908, it seems we will have to hold adversely to appellant's contention. An award was not made in favor of the father. It seems to be settled now that partial dependency of mother and minor brothers and sisters will sustain an award.

This award should be affirmed, with costs to the State Industrial Board. All concur.

BALL v. BERTELLE'S ESTATE.

(New York Supreme Court, Appellate Division, Third Department. July 6, 1922.)

195 New York Supplement, 150.

MASTER AND SERVANT CARPENTER MAKING REPAIRS HELD AN "INDEPENDENT CONTRACTOR," NOT AN "EMPLOYEE," WITHIN COMPENSATION LAW.

A carpenter, who was engaged by the owner of a building to make repairs to the roof and veranda of the building, and who did the work in his own way and at his own time, without direction from the owner, except indication of the places to be repaired, was an "independent contractor,' and not an "employee," within the Workmen's Compensation Law; the test being that a contractor is subject to the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.

(For other cases, see Master and Servant, Dec. Dig. § 367.)

(For other definitions, see Words and Phrases, First and Second Series, Employee; Independent Contractor.)

Appeal from State Industrial Board.

Proceeding under the Workmen's Compensation Law (Consol. Laws, c. 67) by Louis Ball, employee, against the estate of Frances Bertelle, employer. From an award of compensation by the Industrial Commission, the employer appeals. Award reversed, and claim dismissed.

Argued before Cochrane, P. J., and Henry T. Kellogg, Kiley, Van Kirk, and Hinman, JJ.

Dirnberger & Moore, of Buffalo (M. F. Dirnberger, Jr., ofBuffalo, of counsel), for appellants.

Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission.

HENRY T. KELLOGG, J. The appellants were the owners of certain buildings, some of the rooms of which were occupied by tenants. One of the appellants, Frank J. Bertelle by name, had charge of the buildings, collected rents, and caused repairs to be made. The claimant, by occupation a carpenter, was engaged by Frank J. Bertelle to repair certain roofs and to make repairs to a veranda. The claimant agreed to do the work at odd times during evenings and Saturdays. He brought his own tools to the work and furnished the nails which were required. The appellants furnished the shingles to be used in patching the roofs. Aside from indicating to the claimant the roofs to be patched and the places upon the veranda where repairs were desired, Frank J. Bertelle gave no directions to claimant before the work began or during the progress of the work. He at no time exercised authority over claimant or supervised the performance of the work. Bertelle testified that he asked the claimant what he would charge for the work, and that the claimant, without stating a price, replied: "I won't rob you." The claimant testified that he told Bertelle he would charge him $1.05 an hour. With this exception their testimony is in entire accord. The claimant proceeded to do the work in his own way, at times chosen by himself, without directions as to the manner in which the work should be performed, and without_stipulation as to the time when it should be completed. In the course of the work he sustained an accidental injury, for which an award against these appellants as his employers has been made.

It was said in Hexamer v. Webb, 101 N. Y. 377, 4 N. E. 755, 54 Am. Rep. 703:

"The test to determine whether one who renders service to another does so as a contractor or not is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished."

In Litts v. Risley Lumber Co., 224 N. Y. 321, 120 N. E. 730, it was said:

"In the instant case Litts was an independent contractor. He agreed to do a specific piece of work for the company. In doing it he had absolute control of himself and his helper. He was independent as to when, within a reasonable time after the agreement was made between him and the company, and as to where, he should commence the work. He was free to proceed in the execution of it entirely in accordance with his own ideas. He was not to any extent subject to the directions of the company in respect to the method, means, or procedure in the accomplishment. He was not subject to a discharge by the company because he did the painting in one way rather than in another. Those facts, considered by themselves, would constitute him an independent contractor."

This claimant, who represented "the will of his employer only as to the result of his work, and not as to the means by which" it was accomplished, met the test furnished by the Hexamer Case. He met equally well all the tests of the Litts Case, and within these and many other cases not necessary to mention he was clearly not an employee, but an independent contractor. The award should be reversed, and the claim dismissed.

Award reversed, and claim dismissed, with costs against the State Industrial Board. All concur.

BACHE v. SALVATION ARMY ET AL.

(New York Supreme Court, Appellate Division, Third Department. July 6, 1922.)

195 New York Supplement, 151.

MASTER AND SERVANT-EMPLOYEE OF CONTRACTOR REPAIRING BUILDING HELD NOT "EMPLOYEE" OF OWNER, WITHIN COMPENSATION LAW.

Where the owner of a building engaged a carpenter to make repairs the carpenter to furnish the materials and labor, a workman employed by the carpenter was not an employee of the owner, so as to be entitled to compensation, under the Workmen's Compensation Law, though on particular occasions, in the absence of the contractor, a representative of the owner gave instructions as to the particular places where he desired the work to progress and the particular kind of work to be done.

(For other cases, see Master and Servant, Dec. Dig. § 367.) (For other definitions, see Words and Phrases, First and Second Series, Employee.)

Appeal from State Industrial Board.

Proceeding under the Workmen's Compensation Law (Consol. Laws, c. 67) by George F. Bache, as employee, opposed by the Salvation Army, employer, and the Employers' Liability Assurance Corporation, Limited, insurance carrier. From awards of compensation by the State Industrial Board, the employer and insurance carrier appeal. Awards reversed, and claim dismissed.

Argued before Cochrane, P. J., and Henry T. Kellogg, Kiley, Van Kirk, and Hinman, JJ.

Bertrand L. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for appellants.

Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Board.

COCHRANE, P. J. The question in this case is whether the claimant was an employee of the Salvation Army. There is no dispute as to any material question of fact. The Salvation Army desired certain alterations to be made to its stock rooms and offices in its building at No. 126 West Fourteenth street, New York City. Mr. Wing was engaged in the carpenter business on his own account and had a place of business near the Salvation Army building. He was employed by the Salvation Army to make the desired alterations in its building. For that purpose he furnished all the labor and material. The work continued from November 15, 1920, until January 11, 1921. In the performance of the work he employed at different times from three to five men, including the claimant, and also worked on the job himself. He paid his men, including the claimant, $9 a day. He charged the Salvation Army $10 a day for each man. On his own responsibility he purchased the material and charged the Salvation Army therefor, receiving a profit on the material thus furnished. For the labor and material thus furnished he was paid by the Salvation Army over $2,000. While at work on this job the claimant received an injury resulting in the loss of his right eye.

We have here the very common transaction of a mechanic or contractor furnishing labor and material in repairing a building for another, and for which repairs he is paid either a reasonable compensation or a

price fixed by the terms of the contract. The men employed by him are not ordinarily employees of the owner of the building. In the present instance there was no contractual relation between the claimant and the Salvation Army. It is a matter of indifference that on particular occasions, in the absence of Mr. Wing, directions may have been given by the representative of the Salvation Army as to the particular places where he desired the work to progress and the particular kind of work to be done. He did not assume to give directions as to the method of performance or the means or procedure in the accomplishment of the work. See Thorn v. Clark, 188 App. Div. 411, 177 N. Y. Supp. 201; Matter of Litts v. Risley Lumber Co., 224 N. Y. 321, 120 N. E. 730. Whatever directions were given by this representative were such as would have been given to Mr. Wing, if he had been present indicating the nature of the work desired, and did not affect the relationship of the parties. In the case last cited it was said:

"The fact that during the progress of the work the company told Litts to do certain acts which were essential to the performance of the agreement—that is, to scrape off and paint well the rusty spots-is not inconsistent with his status or relation as an independent contractor. The relation permitted the company to exercise the degree of control essential to secure the fulfillment of the contract and which did not deprive Litts of the right and opportunity to do the painting in the way he wished. Uppington v. City of New York, 165 N. Y. 222; Boyd v. Chicago & N. W. Ry. Co., 217 Ill. 332; Carleton v. Foundry & Machine Products Co., 165 N. W. Rep. 816 (Michigan Supreme Court, December, 1917)."

There is no evidence that the claimant owed any allegiance to the Salvation Army nor any responsibility to it as its employee. It seems very clear that he was not an employee of the Salvation Army, but of Mr. Wing, an independent contractor. See, also, Matter of Ball v. Estate of Frances Bertelle, 194 N. Y. Supp. 150, decided here

App. Div.

with. Opinion by Henry T. Kellogg, J.

The awards should be reversed, and the claim dismissed, with costs against the State Industrial Board. All concur.

CROCKETT v. F. T. COPPINO & SONS ET AL.

(New York Supreme Court, Appellate Division, Third Department. July 6, 1922.)

195 New York Supplement, 153.

MASTER AND SERVANT - LOSS OF USE OF ONE FOOT AND PARTIAL USE OF OTHER FOOT HELD NOT "TOTAL DISABILITY," WITHIN COMPENSATION LAW.

Where claimant lost the entire use of his right foot and 40 per cent. of the use of his left foot, but could walk with the aid of crutches, he was not totally disabled, within Workmen's Compensation Law, § 15,

subd. 1.

(For other cases, see Master and Servant, Dec. Dig. § 385[14].) (For other definitions, see Words and Phrases, First and Second Series, Total Disability.)

Henry T. Kellogg and Kiley, JJ., dissenting.