Claim of Hurst v. Fehr & Sons

Appellate Division of the Supreme Court of New York

Claim of Hurst v. Fehr & Sons

225 A.D. 436, 233 N.Y.S. 393, 1929 N.Y. App. Div. LEXIS 11660

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 20, 1929

StatusPublished

Cited by1 cases

This text of 225 A.D. 436 (Claim of Hurst v. Fehr & Sons) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Hurst v. Fehr & Sons, 225 A.D. 436, 233 N.Y.S. 393, 1929 N.Y. App. Div. LEXIS 11660 (N.Y. Ct. App. 1929).

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Opinion

Hinman, J.

Claimant had been a lather for years and had been accustomed to do such work for contractors, charging at the rate of five dollars and twenty-five cents per 1,000. A general contractor engaged claimant to lath a house which such contractor was erecting and agreed to pay him at that rate. When claimant undertook the work he sent his son and another lather to do it [437]*437and did not himself appear on the job until the third day. The scaffold on which claimant was working on that day broke and he injured his foot, for which he has received an award of workmen’s compensation. Claimant agreed to do a specific piece of work, namely, to lath a particular house. It required him to be responsible for putting the necessary number of lath in that house at a definite sum per 1,000. His working hours were not prescribed for him. He assumed to send others to do the work. He did not appear personally on the job until the general contractor sent word to him to put more men on the job because the plasterers were ready to start. He paid his own men and the general contractor sent one check to claimant covering the services of all. The lathers supplied their own tools and erected their own scaffolds, using lumber supplied by the general contractor. Under all these circumstances and particularly the fact that he was not required to provide his own personal services alone but could and did procure the work to be done by others, we think he was an independent contractor. (Dean v. Johnson, 216 App. Div. 773; Ball v. Estate of Bertelle, 201 id. 768; Matter of Beach v. Velzy, 238 N. Y. 100.)

The award should be reversed and the claim dismissed, with costs against the State Industrial Board.

Van Kirk, P. J., Whitmyer and Hill, JJ., concur; Hasbrouck, J., dissents.

Award reversed and claim dismissed, with costs against the State Industrial Board.

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Hinman, J.

Claimant had been a lather for years and had been accustomed to do such work for contractors, charging at the rate of five dollars and twenty-five cents per 1,000. A general contractor engaged claimant to lath a house which such contractor was erecting and agreed to pay him at that rate. When claimant undertook the work he sent his son and another lather to do it [437]*437and did not himself appear on the job until the third day. The scaffold on which claimant was working on that day broke and he injured his foot, for which he has received an award of workmen’s compensation. Claimant agreed to do a specific piece of work, namely, to lath a particular house. It required him to be responsible for putting the necessary number of lath in that house at a definite sum per 1,000. His working hours were not prescribed for him. He assumed to send others to do the work. He did not appear personally on the job until the general contractor sent word to him to put more men on the job because the plasterers were ready to start. He paid his own men and the general contractor sent one check to claimant covering the services of all. The lathers supplied their own tools and erected their own scaffolds, using lumber supplied by the general contractor. Under all these circumstances and particularly the fact that he was not required to provide his own personal services alone but could and did procure the work to be done by others, we think he was an independent contractor. (Dean v. Johnson, 216 App. Div. 773; Ball v. Estate of Bertelle, 201 id. 768; Matter of Beach v. Velzy, 238 N. Y. 100.)

The award should be reversed and the claim dismissed, with costs against the State Industrial Board.

Van Kirk, P. J., Whitmyer and Hill, JJ., concur; Hasbrouck, J., dissents.

Award reversed and claim dismissed, with costs against the State Industrial Board.

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Bluebook (online)

225 A.D. 436, 233 N.Y.S. 393, 1929 N.Y. App. Div. LEXIS 11660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-hurst-v-fehr-sons-nyappdiv-1929.

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