Claim of Butterfield v. Brown

261 A.D. 1022, 25 N.Y.S.2d 803, 1941 N.Y. App. Div. LEXIS 8582

Opinion

Claimant as a farm laborer was excluded from the operation of the act. (Workmen’s Comp. Law, § 2, subd. 4.) Carting firewood for domestic use from a farm that the employer was operating on shares at Owl’s Head, N. Y., is farm labor. Award reversed and claim dismissed, with costs against the State Industrial Board. Hill, P. J., Crapser, Bliss and Foster, JJ., concur; Heffernan, J., dissents. Heffernan, J.: I dissent from the decision about to be made and vote to affirm the award. Although the employer was a farmer he was also conducting a number of other enterprises for gain wholly unrelated to that of farming. The State Industrial Board has found as a fact that at the time claimant sustained the injury which is the basis of this award he was not employed as a farm laborer but was actually engaged in a hazardous occupation in an independent operation which his employer was carrying on for pecuniary gain. To permit the employer to escape liability on the facts in this record on the ground that sometimes he was garbed in the cloak of a farmer is judicial legislation. Principle and precedent require an affirmation of the award. (Matter of Miles v. Colegrove, 258 App. Div. 1014; affd., 284 N. Y. 609.)