Group 34. 1Hotels having fifty or more rooms; bakeries, including manufacture of crackers and biscuits, manufacture of confectionery, spices or condiments. [Group 34 am'd by L. 1917, ch. 705.]

1 Words" Hotels having fifty or more rooms,' ," inserted by L. 1917, ch. 705. Compare denial of compensation to manager of a summer hotel: Goddard v. Hurtt, et al., S. D. R., vol. 7, p. 428, February 9, 1916.

Group 35. Manufacture of tobacco, cigars, cigarettes or tobacco products.

Group 36. Manufacture of cordage, ropes, fibre, brooms or brushes; manilla or hemp products.

Group 37. Flax mills; manufacture of textiles or fabrics, spinning, weaving and knitting manufactories; manufacture of yarn, thread, hosiery, cloth, blankets, carpets, canvas, bags, shoddy or felt.

Group 38. Manufacture of men's or women's clothing, white wear, shirts, collars, corsets, hats, caps, furs or robes, or other articles from textiles or fabrics. [Group 38 am'd by L. 1916, ch. 622.]

1 Remaining words of group added by L. 1916, ch. 622.

Group 39. Power laundries; dyeing, cleaning or bleaching.

Group 40. Printing, 1engraving, photo-engraving, stereotyping, electrotyping, lithographing, embossing; 2manufacture of moving picture machines and films; manufacture of stationery, paper, cardboard boxes, bags, or wallpaper; and bookbinding. [Group 40 am'd by L. 1916, ch. 622.]

1 Word" engraving," inserted by L. 1916, ch. 622.

2 Words "manufacture of moving picture machines and films," inserted by L. 1916, ch. 622.

Group 41. The operation, otherwise than on tracks, on streets, highways, or elsewhere of cars, trucks, wagons or other vehicles and rollers and engines, propelled by steam, gas, gasoline, electric, mechanical or other power or drawn by horses or mules; 1life saving stations and lifeguards; 2public garages, livery, boarding or sales stables; movers of all kinds; operation of hand trucks; transportation of goods on rollers; manufacture and operation of aeroplanes or other air craft. [Group 41 am'd by L. 1916, ch. 622; and L. 1917, ch. 705.]

1 Words "life saving stations and lifeguards," inserted by L. 1917, ch. 705.

2 Words "public garages, livery, boarding or sales stables; movers of all kinds," inserted by L. 1916, ch. 622.

air craft,,, added by L. 1917, ch. 705.

3 Words "operation of hand trucks The business of operating vehicles is covered by this group; so that accidents to the following employees are compensatable: a stableman who does no driving: Costello v. Taylor, 217 N. Y. 179; a driver putting his horse in its stall: Smith v. Price, 168 App. Div. 421; a helper on an automobile truck chasing mischievous boys: Hendricks v. Seeman Bros., 170 App. Div. 133; an expressman leaving his vehicle to deliver a package: Miller v. Taylor, 173 App. Div. 865; a taxicab starter slipping on a hotel stairway: David v. Town Taxi Co., S. D. R., vol. 7, p. 464; 175 App. Div. 958; and a driver helping to fix a hand elevator used by him to deliver his load into a basement: Kasper v. Clark & Wilkins Co., S. D. R., vol. 7, p. 454; 175 App. Div. 958.

A driver of a meat wagon who had put up his horse several hours before and was injured while making deliveries afoot was denied compensation: Newman v.

Newman, 169 App. Div. 745; 218 N. Y. 325; also a driver of a florist wagon injured while adjusting a customer's window box: Glatzl v. Stumpp, S. D. R., vol. 6, p. 397; 141 App. Div. 901; 220 N. Y. 71 (award reversed by Court of Appeals with opinion). Compare note on incidentalness under § 3, subd. 7. Elevators are not vehicles within the purview of this group: Wilson v. Dorflinger & Sons, 218. N. Y. 84; but are covered by the amendment to group 22 effected by L. 1916, ch. 622. Hand trucks were not covered by this group previously to its amendment by L. 1917, ch. 705: Holtz v. Greenhut & Co., 175 App. Div. 878. Moving a threshing machine from place to place is not farming but operation of a vehicle: White v. Loades, May 2, 1917; compare Lindebauer The question whether snow conveyors or scrapers are vehicles is pending in the Appellate Division (June, 1917) upon appeal: Berg v. Hetzler Bros., Bul., vol. 2, p. 50.

v. Weiner, 94 Misc. 612.

App. Div.

An employer cannot stand in the relation of the third party to his employee driver making a delivery from one place to another: Winter v. Doelger Brewing Co., 95 Misc. 150; 175 App. Div. 796.

Injury while operating a vehicle for an employer engaged in a non-hazardous occupation for gain is compensatable: Mulford v. Pettit & Sons, 175 App. Div. 958; 220 N. Y. 540; Glatzl v. Stumpp, 220 N. Y. 71.

The Commission, in a recent ruling, awarding compensation to a traveling salesman injured while operating an automobile, has taken note of the new definition of an employee in § 3, subd. 4, as revised by L. 1916, ch. 622: Gurnett v. Ross Co., Bul., vol. 2, p. 126; compare Sickles v. Ballston R. S. Co., 171 App. Div. 108; McDermott v. Ingersoll & Bro., S. D. R., vol. 2, p. 45; affirmed by Appellate Division, May 2, 1917; Benjamin v. Rosenberg, Bul., vol. 2, p. 126.

An injury is compensatable, though the employee is using his own vehicle: Kingsley v. Donovan, S. D. R., vol. 3, p. 367; 169 App. Div. 828.

Group 42. Stone cutting or dressing; marble works; manufacture of artificial stone; steel building and bridge construction 1or repair; installation or repair of elevators, fire escapes, boilers, engines or heavy machinery; brick-laying, tile-laying, mason work, stone-setting, concrete work, plastering; and manufacture of concrete blocks; structural carpentry; painting, 2papering, picture hanging, glazing, decorating or renovating; sheet metal work; roofing; construction, repair and demolition of buildings, зbridges and other structures; 5blasting; maintenance and care of buildings; salvage of buildings or contents; plumbing, sanitary lighting or heating installation or repair; installation and covering of pipes or boilers; 8junk dealers. [Group 42 am'd by L. 1916, ch. 622; and L. 1917, ch. 705.]

1 Words "or repair," inserted by L. 1916, ch. 622.

2 Words "papering, picture hanging, glazing," inserted by L. 1916, ch. 622. 3 Word "and," stricken out by L. 1916, ch. 622.

Words and other structures; salvage of buildings or contents," inserted by L. 1916, ch. 622.

5 Words blasting; maintenance and care of buildings," inserted by L. 1917, ch. 705.

6 Word "lighting," inserted by L. 1916, ch. 622.

7 Words 66

1916, ch. 622.

installation or repair" substituted for word

engineering," by L.

s Words "junk dealers," added by L. 1916, ch. 622.

A painter by trade, injured while painting a farmer's barn, was denied compensation McComsey v. Simmons, S. D. R., vol. 7, p. 433.

Hanging pictures is not "decorating": Grasell v. Brodhead, 175 App. Div. 874. Installation of water tanks is not "installation of boilers, engines or

heavy machinery": Maloney v. Levy & Gilliland Co., 176 App. Div. 470. Compare note on the Bargey, Schmidt and other carpentry cases under § 3, subd. 5, following.

The Appellate Division has affirmed an award to a handy man of a real estate

company injured while fitting glass into a partition: Bredow v. Naughtin & Co., S. D. R., vol. 8, p. 437; 175 App. Div. 958.

The Commission has awarded compensation to an apartment house superintendent, a plumber by trade, injured while fixing a radiator: Unger v. Supreme Realty Co., S. D. R., vol. 9, p. 343.

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Group 43. Any employment enumerated in the foregoing groups and carried on by the state or a municipal corporation or other subdivision thereof, notwithstanding the definition of the term employment" in subdivision five of section three of this chapter. [Group 43 added by L. 1916, ch. 622.] Compare § 3, subds. 3, 5.

Contracts for public work must "contain a stipulation that the same shall be void and of no effect unless the person or corporation making or performing the same shall secure compensation for the benefit of, and keep insured during the life of said contract, such employees, in compliance with the provisions of said law." L. 1916, ch. 478.

For history of this provision compare Attorney-General's opinions and the case of Allen v. State of New York: Special Bulletin, No. 81, pp. 126-133.

Group 44. Employment as a keeper, guard, nurse or orderly in a prison, reformatory, insane asylum or hospital maintained or operated by the state or municipal corporation or other subdivision thereof, notwithstanding the definitions of the terms " employment,"," employer or employee" in subdivision five of section three of this chapter. [Group 44 added by L. 1917, ch. 705.]

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1Any employer not carrying on one of the employments enumerated in this section, or who carrying on one of such employments has in his employ an employee not included within the term " employee" as defined by section three of this chapter, and the employees of any such employer may, by their joint election, elect to become subject to the provisions of this chapter in the manner hereinafter provided. Such election on the part of the employer shall be made by posting notices thereof about the place where the workmen are employed, in a manner to be prescribed by rules to be adopted by the commission, and by filing with the commission a written statement, in a form to be prescribed by the commission, to the effect that he accepts the provisions of this chapter and that he adopts subject to the 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

1 Remainder of section added by L. 1916. ch. 622.

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. [Section 2 am'd by L. 1916, ch. 622.]

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

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2. Commission means the state 1industrial commission, as constituted by this chapter. [Subd. 2 am'd by L. 1916, ch. 622.]

1 Word "industrial " substituted for words "workmen's compensation," by L. 1916, ch. 622.

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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 1including the state and a municipal corporation or other political subdivision thereof. [Subd. 3 am'd by L. 1914, ch. 316.]

1 Words "including the state and" substituted for words "but does not include the state or," by L. 1914, ch. 316.

Numerous accidents involve doubt as to which of two or more employers ought to pay the compensation. In the leading case of Dale v. Saunders Bros., 171 App. Div. 528; 218 N. Y. 59, the Appellate Division held that the fact that the special employer might be liable for compensation did not absolve the general employer and the Court of Appeals held that the question whose employee the injured person was belonged under § 20 solely to the Commission as a matter of fact, the courts not having jurisdiction. Other court decisions are: Dale v. Hual Construction Co., S. D. R., vol. 9, p. 282; 175 App. Div. 284; Gimber v. Kane Co., 171 App. Div. 958; Hadden v. Stanton, S. D. R., vol. 9, p. 294; 177 App. Div. - Nolan v. Cranford Co., S. D. R., vol. 4, p. 337; 171 App. Div. 959; 219 N. Y. 581; Peake v. Lakin, S. D. R., vol. 9, p. 290; 176 App. Div. 917; N. Y. May 8, 1917; Sullivan v. Preston, S. D. R., vol. 10, p. 566; 177 App. Div. 110, March 7, 1917; Wood v. Tupper Lake Chemical Co., S. D. R., vol. 9, p. 372; May 2, 1917; and De Noyer v. Cavenaugh, S. D. R., vol. 10, p. 599;

N. Y.

July 11, 1917.

App. Div.

App. Div.

March 21, 1917; In a unique ruling the Commission distributed responsibility for payment of an award among fifteen different employing firms: Sayers v. Ogdensburg Power & Light Co., et al., S. D. R., vol. 8, p. 393. Other Commission rulings decisive of the employer question are: Benjamin v. Rosenberg, Bul., vol. 2, p. 126; Dissosway v. Jallade, S. D. R., vol. 7, p. 449; Galelli v. Magnesite Products Co., S. D. R., vol. 7, p. 416; Landrigan v. Cochran, S. D. R., vol. 6, p. 310; Liebenberg v. Rosenthal, Bul., vol. 2, p. 89; Norman v. Empire Lighterage & Wrecking Co., S. D. R., vol. 2, p. 480; Renda v. Occuizzo, S. D. R., vol. 10, p. 581; Bul., vol. 2, p. 46; Sala v. Martorella & Giannesi, S. D. R., vol. 7, p. 378; and Vance v. Frazee & Co., Bul. vol. 2, p. 103.

4. "Employee means a person 1engaged in one of the occupations enumerated in section two or who is in the service of an employer 3whose 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.]

1 Words 66 engaged in one of the occupations enumerated in section two or," inserted by L. 1916, ch. 622.

2 Words "engaged in a hazardous employment," stricken out by L. 1916, ch. 622. 3 Words "whose principal business is that of," inserted by L. 1916, ch. 622. 4 Words "a hazardous employment "" substituted for words "the same," by L. 1916, ch. 622.

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In cases of accidental injury to employees while coming to or leaving work, the courts construe the term engaged" in this subdivision with the term " arising out of" in subdivision seven following; as a general rule such injuries, in order to be compensatable, must occur on the employer's premises and must occur within reasonable time and without intervening pursuit other than the employment; court opinions denying compensation in such cases have been handed down in Devoe v. N. Y. State Rys., 169 App. Div. 472; 218 N. Y. 318; Berg v. Great Lakes Dredge & Dock Co., 173 App. Div. 82; McCabe v. Brooklyn Heights R. R. Co., S. D. R., vol. 8, p. 407; 177 App. Div. 107, Jan. 9, 1917; Pope v. Merritt & Chapman Derrick & Wrecking Co., S. D. R., vol. 10, p. 587; 177 App. Div. 69; and Ames v. N. Y. Central R. R. Co., S. D. R., vol. 9, p. 393; App. Div. May 2, 1917; for an award to an employee injured while quitting his employer's premises, affirmed by the Appellate Division with opinion, compare Kiernan v. Friestedt Underpinning Co., S. D. R., vol. 5, p. 390; 171 App. Div. 539; for similar awards affirmed without opinion, DiPaolo v. Crimmins Contracting Co., S. D. R., vol. 5, p. 428; 173 App. Div. 988; 219 N. Y. Rep. 580; Foley v. Bretton Hall Co., S. D. R., vol. 4, p. 339; 172 App. Div. 914; Gray v. DeJong, S. D. R., vol. 5, p. 404; 173 App. Div. 922; Caccavano v. N. Y., Ontario & Western R. R. Co., S. D. R., vol. 6, p. 380; 174 App. Div. 900; and Countryman v. Neuman, S. D. R., vol. 7, p. 421; 174 App. Div. 900; the Commission has expressly stated the principles applicable to cases of coming to, or quitting work, in Hotaling v. Standard Oil Co. of N. Y., S. D. R., vol. 6, p. 308; and DiPaolo v. Crimmins Contracting Co., S. D. R., vol. 5, p. 428; and has further illustrated them in Diciaiulo v. Kerbaugh, S. D. R., vol. 1, p. 424; Bennett v. Russell & Sons Co., S. D. R., vol. 6, p. 403; Smith v. Gold, S. D. R., vol. 9, p. 376; Campanella v. Stola Construction Co., S. D. R., vol. 9, p. 385; Liberatore v. Kelly Construction Co., S. D. R., vol. 10, p. 574; Lee v. Smith & Sons Co., S. D. R., vol. 10, p. 584; and McGuire v. Brooklyn Heights R. R. Co., S. D. R., vol. 10, p. 631.

The courts have been called upon to determine the compensativness of accidental injuries to watchmen employed by employers carrying on the employments covered by the workmen's compensation law; the Appellate Division has drawn distinctions granting cor.ipensation to certain watchmen of such employers and denying it to others; thus, it has affirmed awards to watchmen in White v. N. Y. C. & H. R. R. R. Co., 169 App. Div. 903; Sorge v. Aldebaran Co., 171 App. Div. 959; Hellman v. Manning Sandpaper Co., 176 App. Div. 127; Kobyra v. Adams, 176 App. Div. 43; and Riedel v. Mallory Steamship Co., 176 App. Div. 923; but has reversed awards in Oberg v. McRoberts & Co., 175 App. Div. 1; Fogarty v. National Biscuit Co., 175 pp. Div. 729; and Kehoe v. Consolidated Telegraph and Electrical Subway Co., 176 App. Div. 84; the Court of Appeals has ignored these distinctions in its opinion of May 8, 1917, in which it reverses the Appellate Division's decision in the Fogarty case and places the compensation of watchmen upon the broad ground of incidentalness (221 N. Y. 20).

The Appellate Division has denied compensation to such outside employees as salesmen, ice harvesters, purchasing agents, process servers, etc.: Aylesworth v. Phoenix Cheese Co.. 170 App. Div. 30; Sickles v. Ballston R. S. Co., 171 App. Div. 108; Mandel v. Steinhardt & Bros., 173 App. Div. 515; Lyon v. Windsor & Davis, 173 App. Div. 377; Brown v. Richmond Light & R. R. Co., 173 App. Div. 432; but the Commission in its recent rulings in the similar cases of Rzepczyriski v.