Claim of Neff v. Franklinville Roofing Co.

283 A.D. 903, 130 N.Y.S.2d 101, 1954 N.Y. App. Div. LEXIS 5698

Opinion

This is an appeal from a decision of the Workmen’s Compensation Board reversing an award made by a referee and disallowing a claim. Claimant was engaged to haul logs by one Cima, proprietor of respondent, Franklinville Roofing Company. Claimant used his own team of horses and his own tools. While so working on May 2, 1952, he was struck by a log and suffered a fracture of the pelvis. He claimed that there was no discussion as to the rate of pay, whereas Cima testified it was agreed that claimant would haul the logs for the fiat sum of $50. Claimant is a farmer but has, on occasion, hauled logs for others on a contract basis. Cima testified that he sought claimant out for the desired work at the suggestion of persons in the locality. While in the hospital and less than fifteen days after the accident, claimant signed a statement in which he stated that he considered himself an independent contractor, having hauled logs for a number of years on a contract basis for various persons, and that he had agreed to skid logs for Cima for a contract price of $50, using his own team of horses. Even if the statement were illegally obtained in violation of section 270-b of the Penal Law, it would not be incompetent or inadmissible in evidence. (Bloodgood v. Lynch, 293 N. Y. 308, 311.) It does not appear to be seriously contended, that this layman’s characterization of himself as an independent contractor could be determinative or conclusive. However, it was a question of fact for the board to determine claimant’s status. Its determination in that respect is supported by the record. Decision affirmed, without costs. Poster, P. J., Coon and Imrie, JJ., concur; Bergan, J., dissents.