Claim of McCracken v. Abbey of Gethsemani, Inc.

285 A.D. 1100, 139 N.Y.S.2d 353, 1955 N.Y. App. Div. LEXIS 6769

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 1, 1955
• Status: Published

Opinion

Appeal from a decision and award of the Workmen’s Compensation Board. The principal issue upon this appeal is whether the status of the claimant at the time he was injured was that of an employee or an independent contractor. The appellant monastery operated a general farm. The claimant and one Kime, who were neighboring farmers, were asked by the monastery to assist it in filling a silo with corn. The claimant and Kime jointly owned a box cutter and blower which they brought with them and they also brought a truck and tractor. The other equipment used in the operation was owned by the monastery. No arrangement for payment was made prior to the beginning of the work but it was subsequently agreed that the monastery would pay $10 per hour for the work and the use of the equipment. There was proof that, in the performance of the work, the claimant and Kime worked together with various brothers, members of the monastery, under the supervision and control of a general manager employed by the monastery. The claimant was injured while assisting some of the brothers in lining up a belt on a tractor which was owned by the monastery and was being used in the silo-filling operation. He was directed to do this work by the general manager. There was testimony to the effect that the monastery officers had the right to discharge the claimant at any time. In view of the proof as to supervision and control, there was sufficient evidence to sustain the finding of the board that the claimant was an employee and not an independent contractor. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Poster, P. J., Coon, Halpern, Imrie and Zeller, JJ.