Opinion
October 27, 1971
Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board, filed November 24, 1970. On December 12, 1966, Arthur Rushforth, the president of the employer, Art Landscaping Co., Inc., was fatally injured when a truck in which he was hauling wine, collided with a train in Maspeth, New York. The issues involved are whether decedent was an employee of Art Landscaping Co., Inc., at the time of the accident and whether the accident arose out of and in the course of employment. The board found "that the decedent was employed by Art Landscaping Co., Inc., and that an employer-employee relationship existed between the decedent and Art Landscaping Co., at the time of the accident on December 12, 1966", and that the "accident on December 12, 1966 arose out of and in the course of employment and resulted in his death". The question as to whether the relationship between the parties was one of employer and employee has been held to constitute "a finding of fact not subject to reversal as a matter of law" ( Matter of Denman v. Many Zanetti, 8 A.D.2d 576, affd. 8 N.Y.2d 799), when there is substantial evidence to support the finding. There being substantial evidence in the record here to support the determination of the board, its determination should be affirmed. Decision affirmed, with costs to the Workmen's Compensation Board. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.