Claim of Mandatto v. Hudson Shoring Co.

Lyon, J.:

This appeal is taken upon the ground that the claimant was not at the time of receiving the injury an employee of the defendant the Hudson Shoring Company, but was an independent contractor. The White Fireproof Construction Company had a contract to erect a building in Brooklyn, N. Y. It had made a contract with the Hudson Shoring Company to shore up the building on adjacent property. It had also made a contract with the claimant to excavate the cellar of the building. For the purpose of doing such work the claimant had a derrick and a gasoline engine. The claimant made a verbal agreement with the Hudson Shoring Company that each would mutually assist the other; that the claimant might use the blocking and timbers the Hudson Shoring Company had upon the work, and in return therefor the claimant would use his derrick and engine in assisting it in its work. On June 27, 1918, 'the Hudson Shoring Company asked the claimant, in pursuance of the agreement between them, to use his derrick and engine to hoist for it a large beam which it was using in its shoring operations. While doing so, claimant’s right foot became caught in the slack end of the ropes being used and was. badly crushed, disabling the claimant. The State Industrial Commission made an award of compensation against the Hudson Shoring Company and its insurance carrier, and continued the claim for further hearing. From such award this appeal is taken.

The claimant was rendering service to the Hudson Shoring Company at its request. While there was no agreement to pay him in money for the service rendered, yet he was to receive the use of blocking and timbers as the consideration therefor. He was not engaged in the performance of any work for himself, nor upon his contract for excavating, but while rendering such service he was an employee of the Hudson Shoring Company within the meaning of the Workmen’s Compensation Law, section 3, subdivision 4. (Matter of Kucharuk v. McQueen, 221 N. Y. 607; Matter of De Noyer v. Cavanaugh, Id. 273; Matter of Dale v. Saunders Bros., 218 id. 59; Matter of Powley v. Vivian & Co., Inc., 169 App. Div. 170.)

The award should be affirmed.

All concur, except H. T. Kellogg, J., dissenting, with a memorandum.