Keller v. Equitable Life Assurance Society of United States

246 A.D. 565

Opinion

Judgment reversed on the law, with costs, and complaint dismissed, with costs. Memorandum. Taking into consideration the terms and circumstances of plaintiff’s employment as a cleaning woman, the character of the work, the continuance of the service, the means used to perform the work and the manner of its performance, as well as all the other surrounding facts shown in the record, we have reached the conclusion that the plaintiff was a servant of the defendant rather than an independent contractor. (Matter of Beach v. Velzy, 238 N. Y. 100; Hexamer v. Webb, 101 id. 377; Sadler v. Henlock, 4 E. & B. 570; Restatement of the Law of Agency, § 2.) All concur, except Taylor and Thompson, JJ., who dissent and vote for affirmance on the ground that the question whether the plaintiff was an independent contractor or a servant was fairly one of fact for the jury and the verdict rendered was sufficiently sustained by the evidence. (Matter of Beach v. Velzy, 238 N. Y. 100; Matter of Litts v. Risley Lumber Co., 224 id. 321; Ball v. Estate of Bertelle, 201 App. Div. 768; Adel v. Rubin, 210 id. 499.) (The judgment was for damages for personal injuries sustained while cleaning a second floor veranda.) Present — Sears, P. J., Taylor, Edgcomb, Thompson and Lewis, JJ.