Claim of Preininger v. Mil-Jo Realty Corp.

9 A.D.2d 590, 189 N.Y.S.2d 273, 1959 N.Y. App. Div. LEXIS 7456

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 13, 1959
• Status: Published

Opinion

Appeal from a decision and award of the Workmen’s Compensation Board. Claimant was employed as a superintendent in the employer’s apartment building. As part of the compensation an apartment was given claimant and his wife, who helped him in his work. No specific hiring was made of the wife, but the claimant understood that he would not be employed unless he was married and his wife was with him. The issue in this appeal arises over the rate of compensation; the employer and carrier argue that the employment should be deemed that of two persons, the husband and wife; and that the rate of compensation for the husband should be based on one half such wages. The board has ruled that the claimant, and not the wife, was the employee and that the claimant is entitled to have the rate fixed on the entire wage paid. There is substantial evidence to support this determination. Both the claimant and the employer’s officer testified that the claimant was the one who was hired. His name was the only one on the payroll; and he was the only one for whom social security payments were made. The manager of the employer corporation testified that “we hired him, truthfully, but the reason for the continued employment is the help she has been giving him ”, When this witness was pressed further he said " I said she does certain work and [is] not an employee”. We think the determination of the board entirely justified on this record. Award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ.