Claim of Biatolbzski v. Smith

262 A.D. 1051, 30 N.Y.S.2d 254, 1941 N.Y. App. Div. LEXIS 7187

Opinion

Appeal from a decision and award of the State Industrial Board holding the claimant to be an employee and not an independent contractor and making an award of disability benefits under the Workmen’s Compensation Law. The claimant was engaged as a general handy man and to do rough carpentry and tree trimming at five dollars per day. There was no estimated contract price for one particular job. The employer furnished some tools which were unsatisfactory and then the claimant used his own tools. The employer furnished some of the equipment and while claimant was working trimming a tree and the employer’s foreman was working with him, claimant fell and was injured. On this evidence the finding of the Industrial Board that claimant Was an employee cannot be disturbed. Appellants raise the further point that the denial by a single member of the Industrial Board of their request to submit the ease to the full membership of the Board constituted an arbitrary exercise of power and unwarranted under the statute. Award unanimously affirmed, with costs to the State Industrial Board. Present — Hill, P. J., Bliss, Hefiernan, Sehenek and Foster, JJ.