Claim of Friedrich v. L. Hirsch & Sons

257 A.D. 878, 11 N.Y.S.2d 1000, 1939 N.Y. App. Div. LEXIS 8252

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 1939
• Status: Published

Opinion

This is an' appeal by the employer and insurance carrier from an award and decision of the State Industrial Board. On August 1, 1931, the decedent herein sustained accidental injuries resulting in his death for which the award was made. He was at the time a dress salesman for the employer herein. The questions presented to this court for review are:

1. That the award herein does not come within the purview of section 25-a of the Workmen’s Compensation Law;

2. Whether the decedent was an employee rather than an independent contractor;

3. Whether the fact that the widow and children received benefits under the Texas law precluded their right to compensation in this State.

The decedent was working under a written contract. There is no question about his being an employee. The employer’s place of business was in Brooklyn, N. Y. The contract was made by mail and is in the record. The record clearly discloses that this case was pending before the State Industrial Board on April 24, 1933, and, therefore, section 25-a did not apply. Any moneys which the claimants received under the Texas proceedings did not affect their rights under the Workmen’s Compensation Law of New York State, because claim for compensation was not pressed in Texas. The evidence supports the award appealed from. Award unanimously affirmed, with costs to the State Industrial Board.