Claim of Washburn v. Bunce , 248 A.D. 652 ( 1936 )

Appeal from an award of the State Industrial Board in a death case. The decedent was fatally injured about eight-thirty in the evening on August 24, 1934, while drawing gravel from a gravel bin, which collapsed and fell upon him. The employer and carrier resisted the claim on the ground that the decedent was an independent contractor. What was referred to in the evidence as the “ written contract,” is a letter written by decedent to the employer, as follows: “ Confirming our conversation of June 1, I hereby agree to haul the sand and gravel from Alfred, New York, as required, for the three bridges which you have under construction between Friendship and Nile for Eighty-five (.85) Cents per ton.” The agreement as indicated by the letter, and by the oral evidence did not state the time, the quantity, or the manner of doing the work, except “ as required.” Neither did the contract indicate that all of the gravel was to be hauled by the decedent; nor the entire amount of compensation to be paid. According to the employer’s testimony, the decedent could have abandoned the work at will; and the employer was free to haul the gravel himself, or employ others to do so. The employer also testified that the reason why he contracted to have the gravel hauled by the ton was to avoid the sauntering and the delays which a hiring by the hour or by the day would make possible. The decedent was an employee, as distinguished from an independent contractor. Award affirmed, with costs to the State Industrial Board. Hill, P. J., Rhodes, McNamee and Heft’ernan, JJ., concur; Bliss, J., dissents.