Claim of Van Valkenburgh v. New York State Vocational School

256 A.D. 1008, 10 N.Y.S.2d 293, 1939 N.Y. App. Div. LEXIS 5868

Opinion

Appeal from a decision of the State Industrial Board, made November 21, 1935, noticed December 2,1935, and affirmed by the Board March 11, 1936, denying an award. The claimant Was a farmer operating his own farm, and also was the owner of a thrashing machine with which he did commercial thrashing for other farmers. On October 11, 1934, while thrashing for the employer, he was cranking his tractor engine in the performance of his work, the engine backfired, and claimant was struck by the crank and injured. The question presented to the Board was whether he was an employee within the Workmen’s Compensation Law, or an independent contractor. There was evidence that the claimant did thrashing generally over a long period of years for others, and was paid for that service at the rate of five cents a bushel when thrashing oats; that he had agreed to thrash the oats of the employer on the same terms; that apart from locating the thrashing machine, to serve the purpose of the employer, the claimant conducted the work of thrashing, and the operation of his machine without supervision on the part of any one; that the claimant kept a record of the number of bushels thrashed and a record of his “ time ” was not kept by the employer; and when the work was completed the claimant gave a receipt for the services rendered at the rate of five cents a bushel. The evidence was such as to justify the Board in holding that the defendant was an independent contractor. Decision affirmed. Hill, P. J., Rhodes, MeNamee and Crapser, JJ., concur; Heffernan, J., dissents, and votes to reverse, and to remit the matter to the [State] Industrial Board for further consideration. The evidence clearly shows that the claimant was not an independent contractor, and that fact is admitted by the employer’s report of injury. .