MATTER OF PERRY v. Town of Cherry Valley

121 N.E.2d 402, 307 N.Y. 427, 1954 N.Y. LEXIS 973

• Court: New York Court of Appeals
• Decided: July 14, 1954
• Status: Published

Opinions

Dye, J.

The workmen’s compensation committee of the Board of Supervisors of the County of Otsego appeal to this court by our permission in order to test the propriety of an award of compensation benefits to the widow of Earl Perry, deceased, formerly superintendent of highways of the Town of Cherry Valley.

According to the affirmed findings of fact, the decedent sustained accidental injuries resulting from his employment while working for his employer and while using town equipment in the blasting of rock on privately owned lands; the work he was performing was incidental to his employment and arose out of and in the course of his employment.

While no definitive finding of fact was made, it is undisputed that the practice of blasting of rocks on privately owned lands had been customary for at least twenty years, for which the town collected a fee. In this instance the fee was to be $5.

The sole question is whether such circumstances operated to render the Workmen’s Compensation Law inapplicable. We think not. For purposes of compensation the law makes no distinction between a public and private employment. Municipal fault or liability is not at issue (N. Y. Const., art. I, § 18; Workmen’s Compensation Law [L. 1913, ch. 816, as re-enacted and amd. by L. 1914, ch. 41, and L. 1922, ch. 615]). An employer’s liability to pay compensation depends on the employment and the right to payment depends on a work-connected injury (Workmen’s Compensation Law, § 2, subds. 7-8).

The town is a municipal corporation (Town Law, § 2) possessing only such powers and authority as the Legislature confers (Whittaker v. Village of Franklinville, 265 N. Y. 11) and as such is instituted for public purposes only (Mayor v. Ray, 19 Wall. [U. S.] 468; Wells v. Town of Salina, 119 N. Y. 280).

For purposes of compensation a municipal corporation is an employer (Workmen’s Compensation Law, § 2, subd. 3) and when its employees are injured in a hazardous occupation is liable for compensation (Workmen’s Compensation Law, § 3, subd. 1, groups 3-13). We have held that a town superintendent of highways is within the purview of the Workmen’s Compensation Law (Matter of Dann v. Town of Veteran, 278 N. Y. 461) and this is so even though he is an officer of the town (Town Law, § 20, subd. 1, par. [b]). Here the town secured compensation for its injured employees under a mutual self-insurance plan (Workmen’s Compensation Law, § 50, subd. 3-a) from which the decedent was not excluded.

The fact that the decedent was town superintendent of highways and, as such, had no authority to enter into an illegal contract (Town Law, § 32; Matter of Clarke v. Town of Russia, 283 N. Y. 272) does not prevent treating him as an employee of the town for purposes of compensation (Matter of Dann v. Town of Veteran, supra). In Matter of Clarke v. Town of Russia (supra) compensation benefits were denied the injured claimant because the contract of employment was illegal in its inception, it being contrary to public policy and void for a superintendent of highways to employ a member of the town board (Town Law, § 105; Matter of Swihura v. Horowitz, 242 N. Y. 523).

Here, according to the uncontradicted evidence, the fatal injuries were directly attributable to the employment status, the legality of which is nowhere challenged (cf. Ulrich v. Terminal Operating Corp., 186 Misc. 145, affd. 271 App. Div. 930).

The order appealed from should be affirmed, with costs.