Claim of Breault v. Central New York Insulating Co.

282 A.D. 904, 124 N.Y.S.2d 798, 1953 N.Y. App. Div. LEXIS 5374

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 16, 1953
• Status: Published

Opinion

Appeal from a decision of the Workmen’s Compensation Board reversing a referee’s decision and disallowing appellant’s claim on the finding that he was not an employee of Central New York Insulating Company (here called Central New York) but was an independent contractor working for different manufacturers on a commission basis. Claimant received the injuries for which he claimed compensation benefits in an automobile accident. The evidence showed that he sold various products of Central New York as well as of other manufacturers, some of which were products competing with those of Central New York. He worked solely on a commission basis, and had no drawing account. He and one Frye, who was with him at the time of the accident, worked together as partners, splitting commissions. Claimant had a sign at the door of his house reading, “Martin K. Breault, Metal Awnings”. Claimant’s testimony that Central New York provided him with leads or prospects was controverted and there was substantial evidence that he and Frye were free of direction of the company as to times, location and details of their work. The company manager testified that he had unsuccessfully sought to persuade both claimant and Frye to become employees to sell the company’s products only. The decision of the board that claimant was an independent contractor rather than an employee is amply sustained by the evidence. Decision of the Workmen’s Compensation Board unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ. [See post, p. 1093.]