Claim of Mihm v. Hussey

Appellate Division of the Supreme Court of New York

Claim of Mihm v. Hussey

169 A.D. 742, 155 N.Y.S. 860, 1915 N.Y. App. Div. LEXIS 5099

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

DecidedNovember 10, 1915

StatusPublished

Cited by3 cases

This text of 169 A.D. 742 (Claim of Mihm v. Hussey) 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 Mihm v. Hussey, 169 A.D. 742, 155 N.Y.S. 860, 1915 N.Y. App. Div. LEXIS 5099 (N.Y. Ct. App. 1915).

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Opinions

Lyon, J.:

The State Industrial Commission has certified to this court the question: “Was the claimant at the time of the injury engaged in a hazardous employment within the meaning of the Workmen’s Compensation Law, and entitled to compensation as a result of injuries arising out of and in the course of such employment.” The employer was engaged in the wholesale produce business, with an office at 348 Broadway, Albany, N. Y. In connection with said business, and upon said premises, he maintained a warehouse or place of storage in which the produce owned by him was kept in storage until sold at wholesale.

The claimant was in his employ as shipper, and on the 28th of September, 1914, while tiering barrels of vinegar, weighing about 500 pounds each, in the storehouse, his right hand was pressed against a brick wall, injuring the second and third fingers. The Commission has found that the injuries were accidental, arose in the course of employment, and were without fault of the employee.

The alleged hazardous employment in which claimant was engaged is embraced in group 29 of section 2 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), which is as follows: “Milling; manufacture of cereals or cattle foods, warehousing; storage; operation of grain elevators.”

The single question, therefore, for decision is whether the claimant was engaged in the “employment” of “warehousing ” at the time he sustained his injuries. Warehousing is defined in the Century Dictionary as “1. The act of placing [744]*744goods in a warehouse. 2. The business of receiving goods *for storage.” “‘Employment’ includes employment only in a trade, business or occupation carried on by the employer for pecuniary, gain.” (Workmen’s Compensation Law, § 3, subd. 5.)

Claimant’s employer was not carrying on the business of warehousing for pecuniary gain, hence the submitted question should be answered in the negative.

All concurred, except Kellogg, J., who dissented in opinion, in which Howard, J., concurred.

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Lyon, J.:

The State Industrial Commission has certified to this court the question: “Was the claimant at the time of the injury engaged in a hazardous employment within the meaning of the Workmen’s Compensation Law, and entitled to compensation as a result of injuries arising out of and in the course of such employment.” The employer was engaged in the wholesale produce business, with an office at 348 Broadway, Albany, N. Y. In connection with said business, and upon said premises, he maintained a warehouse or place of storage in which the produce owned by him was kept in storage until sold at wholesale.

The claimant was in his employ as shipper, and on the 28th of September, 1914, while tiering barrels of vinegar, weighing about 500 pounds each, in the storehouse, his right hand was pressed against a brick wall, injuring the second and third fingers. The Commission has found that the injuries were accidental, arose in the course of employment, and were without fault of the employee.

The alleged hazardous employment in which claimant was engaged is embraced in group 29 of section 2 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), which is as follows: “Milling; manufacture of cereals or cattle foods, warehousing; storage; operation of grain elevators.”

The single question, therefore, for decision is whether the claimant was engaged in the “employment” of “warehousing ” at the time he sustained his injuries. Warehousing is defined in the Century Dictionary as “1. The act of placing [744]*744goods in a warehouse. 2. The business of receiving goods *for storage.” “‘Employment’ includes employment only in a trade, business or occupation carried on by the employer for pecuniary, gain.” (Workmen’s Compensation Law, § 3, subd. 5.)

Claimant’s employer was not carrying on the business of warehousing for pecuniary gain, hence the submitted question should be answered in the negative.

All concurred, except Kellogg, J., who dissented in opinion, in which Howard, J., concurred.

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Bluebook (online)

169 A.D. 742, 155 N.Y.S. 860, 1915 N.Y. App. Div. LEXIS 5099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-mihm-v-hussey-nyappdiv-1915.

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