Claim of Zeltoski v. Osborne Drilling Corp.

239 A.D. 235, 267 N.Y.S. 855, 1933 N.Y. App. Div. LEXIS 8008

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 1933
• Status: Published

Opinions

Hill, P. J.

The employer is a corporation having its offices in the Grand Central Terminal Building, New York city. It was engaged in “ making foundation tests for buildings, tunnels, any public improvement.” An official of the employer described the work in which deceased was engaged at the time of his death as follows: “He was a driller. He was in charge, his regular work was to be in charge of the drill and also to make the test borings. The last week that he was on the job he was doing helper’s work because the work had run down and we didn’t need so many drillers. We kept him on to the end and he was doing loading and unloading and getting the stuff together to ship up home.” The Industrial Board has found: “ 6. The employment in which the deceased wa's engaged at the time of the accidental injuries which resulted in his death was entered into and the deceased was hired in the State of New York. The employer is a domestic corporation with office and principal place of. business located in the State of New York. The location of the employment of the deceased with the said employer was in the State of New York and such employment was transitory and was not at a fixed location outside the State of New York. The work in which the deceased was engaged at the time of the accident which resulted in his death was incidental to his employment in the State of New York, such employment being incidental to a hazardous business being conducted by the said employer within the State of New York.”

I believe that this finding is sustained by the evidence. It is undisputed that the contract of employment with deceased was made in the city of New York and his weekly pay checks were sent to him wherever he might be from the New York office. The following evidence was before the Board: “ Q. How long was your husband employed by the Osborne Drilling Corporation? A. Well, about four years. * * * Q. The deceased during this four and a half years was sent by his employer, the Osborne Drilling Company, to different parts of the State, and outside the State? A. He was, yes, sir. * * * Q. When he returned to the city he was put to work on other jobs here in the State and outside the State? A. In or out. Q. Is that correct? Can you give me an idea of the various places, the places where Mr. Zelotski was sent to during his period of employment? A. Well, the first place he worked in New York State wherever there was work. He went up to Elmira, N. Y., he went to Calican, N. J., to Wilmington, Delaware. Q. Yes. A. He worked in Newburgh, N. Y., and then from there he went to Crafts, N. Y., then he went to Tennessee. Q. On that last job you received letters from him? A. I always did, weekly, yes, sir. Q. Can you give me an outline of the various places he went to for the Osborne Drilling Company when he left New York? A. When he left New York? Q. Yes. A. Well, first of all he went down to Spring City, Tennessee; then he went to — I don’t know where it was, it was Knoxville and from Knoxville he went to Alabama and went to Dayton and from Dayton he went to Chattanooga, Tennessee. Q. He was killed in Chattanooga? A. He was killed in Chattanooga. Q. Do you know the salary your husband was receiving from the Osborne Drilling Company? A. Well, he received $48.00 per week. Q. Did he ever work for any other concern other than this during this four and a half years? A. No, sir. * * * Q. When was Mr. Zelotski sent to Calican, N. J., in September, 1931? A. Yes, sir. Q. He worked steadily for the Osborne Drilling Company until .the time A. Until the time that he died, yes, sir.” Deceased was killed on May 12, 1932. Employer’s bookkeeper gives his employment from September, 1931, until that time as follows: “ September 9th to October 31st, Calican, N. J.; November 4th to February 9th, up at Putnam County, New York State; February 15th to the time of the accident down in Tennessee, with two days in Alabama. Q. What was the last job he worked on before he went to Tennessee? A. Board of Water Supply job up in Putnam County. That job was finished and he was coming in and we had nothing else for him to do, and he requested to be sent to Tennessee and we sent him to Tennessee. Q. How long after he finished with the job up the State was it before he went to Tennessee? A. Well, he left right away but it was six days before he started the Tennessee work. He had to have his car fixed to drive down in his car.”

The so-called Tennessee work consisted in making test borings for the location of eleven dam sites along the Tennessee river. Deceased was so engaged for about three months, and his widow says he worked at Spring City, Knoxville, Chattanooga, Tenn., Dayton (probably Ohio) and at some point or points in Alabama. Except for brief intervals, he had worked for the same employer continuously either in New York, New Jersey or on the Tennessee work during the year immediately preceding his death.

This award should be affirmed. (Matter of Smith v. Aerovane Utilities Corp., 259 N. Y. 126; Matter of Smith v. Heine Boiler Co., 224 id. 9; Matter of Post v. Burger & Gohlke, 216 id. 544.)

Rhodes, McNamee and Bliss, JJ., concur; Crapser, J., dissents, with an opinion.