Claim of Schwartz v. Bernie's Tire & Battery Service , 36 N.Y.S.2d 20 ( 1942 )

This is an appeal from an award made by the State Industrial Board. The employer was engaged in the automobile service and accessory business and the claimant was employed as an automobile accessory repairman. Bernard Schwartz, individually, conducted the above-mentioned business under the firm name of Bernie’s Tire & Battery Service and a certificate was filed to that effect. On March 14, 1939, the claimant was injured while engaged in his regular employment. The evidence shows that the claimant was an employee and had no financial or proprietary interest in such business and was not a partner of Bernard Schwartz. Bernard Schwartz had an insurance policy with a broker by the name of Cole, and on November 5, 1938, a policy of workmen’s compensation insurance was renewed by the appellant herein to cover Bernard Schwartz doing business as Bernie’s Tire & Battery Service. Thereafter and on January 13, 1939, the policy was indorsed at the request of Cole, the broker, to cover Bernard Schwartz and Irving Schwartz as a copartnership, doing business as the Bernie’s Tire & Battery Service. It is claimed by Cole that he personally delivered the indorsement. The request for the indorsement, or that he ever saw the indorsement, is denied by Bernard Schwartz. On April 14, 1939, after the accident, Bernard Schwartz requested the broker to have the policy again changed to read as it was, Bernard Schwartz doing business under the firm name of Bernie’s Tire & Battery Service. The claimant had worked for four years and the books showed that he was an employee. The case is determined on the decision of the State Industrial Board on a vote of three to two that he was an employee and was not a partner and on the question of fact created by Bernard Schwartz and Cole, the insurance broker. A question of fact solely is involved with which this court cannot interfere. Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., Crapser, Bliss, Heffernan and Schenck, JJ.