Claim of Kiernan v. Friestedt Underpinning Co.

171 A.D. 539, 157 N.Y.S. 900, 1916 N.Y. App. Div. LEXIS 5358

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1916
• Status: Published

Opinion

Kellogg, P. J.:

The deceased had been in the employ of the employer appellant for about eight months, receiving three dollars and sixty-eight cents per day, payable weekly. On Monday, April 27, 1915, he worked as usual. Upon appearing for work in the subway Tuesday morning, dressed in his overalls, he was a little late and the superintendent told him he need not work. He excused him from work, not because he was late, but because he felt that he had been drinking some and was not in a fit condition to engage in the dangerous kind of work which he had been doing. He started to leave the subway and tripped and fell, receiving the injury complained of. The appeal proceeds upon the theory that he was not a regular employee, but was there asking for work, which was refused, and that he was not, therefore, injured within the course of his employment. This contention overlooks the fact that he had been employed almost continuously for eight months, and that there was not a separate employment from day to day. The only thing tending to show a daily employment is that he was paid by the day, but his wages were payable weekly. Concededly, he was expected to report for work that morning, and did report, and was told he was not wanted. He was, therefore, a regular employee and was there in the performance of his duty as such, and is entitled to the benefit of the act. The award should be affirmed.

Award unanimously affirmed.