Claim of Bassett v. Van de Bogart & Decker

221 A.D. 606, 225 N.Y.S. 20, 1927 N.Y. App. Div. LEXIS 6516

Opinion

Per Curiam.

The appellant insurance carrier contends that Teator was an independent contractor. Whether he was such or not is unimportant. If he was not the proof clearly makes Bassett, the claimant, a special employee of Van de Bogart & Decker. If Teator, as the appellant claims, was an independent contractor, he was necessarily also a subcontractor of Van de Bogart & Decker performing part of their contract, and Teator, having been uninsured, the contractors, Van de Bogart & Decker, became liable for compensation to the claimant under the provisions of section 56 of the Workmen’s Compensation Law and as the policy of the insurance carrier covered the employees of a subcontractor the carrier is also liable for such compensation. Consequently much of the testimony taken was immaterial. An award may be sustained on the theory of the insurance carrier as well as on the theory of the respondent.

We find error in the determination of the average weekly wage. It is based on a daily wage of three dollars and fifty cents which claimant is said to have been earning at the time of the accident. He had, however, worked only occasionally in that employment. In his ordinary occupation he was earning two dollars and twenty-five cents a day. The award was made under subdivision 1 of section 14 of the Workmen’s Compensation Law but clearly the case does not fall within that subdivision. No evidence was offered bringing the case within subdivision 2 of that section. It would seem that the compensation should be made under subdivision 3. (McDonald v. Burden Iron Co., 206 App. Div. 571; Gruber v. Kramer Amusement Corporation, 207 id. 564; Testo v. Burden Iron Co., 211 id. 219.) From the record it is impossible to determine what should be the average weekly wages of the claimant, and the case must be remitted for further evidence on that point.

The award should be reversed and the matter remitted to the State Industrial Board, without costs, for the purpose of having that Board take evidence bearing on the question of the average weekly wages of the claimant and to make appropriate findings in respect thereto and as to the amount of the award.

Cochrane, P. J., Van Kirk, McCann, Davis and Whitmyer, JJ., concur.

Award reversed and claim remitted to the State Industrial Board, without costs, for the purpose of having that Board take evidence bearing on the question of the average weekly wages of the claimant and to make appropriate findings in respect thereto and as to the amount of the award.