Opinion
Argued April 21, 1937
Decided April 30, 1937
Appeal from the Supreme Court, Appellate Division, Third Department.
F.A.W. Ireland for Hull Grummond Co., et al., appellants.
Walter D. Smith for Whipple, Inc., et al., appellants. John J. Bennett, Jr., Attorney-General ( Leon Freedman of counsel), for State Industrial Board, respondent.
Claimant was employed by Hull Grummond Co., Inc., and Whipple, Inc. For the former he acted as night watchman, receiving wages of eighteen dollars per week, and during the time of his employment he did certain cleaning up for Whipple, Inc., a lessee of Hull Grummond Co., Inc., for which services he received two dollars and fifty cents per week. An award of compensation has been made against both employers, to be divided equally, resulting in a requirement on the part of Whipple, Inc., and its carrier of a payment of four dollars and sixty cents per week, whereas the wages paid amounted to only two dollars and fifty cents per week.
Hull Grummond Co., Inc., contends on this appeal that while the injury was sustained in the course of employment of the employee by Hull Grummond Co., Inc., it did not arise out of such employment. In that respect only a question of fact was involved which has been decided in favor of the respondent.
It is the contention of appellants Whipple, Inc., and the State Insurance Fund, its carrier, first, that the evidence does not support the finding that Stevens was an employee of Whipple, Inc. That likewise is a question of fact, supported by evidence, decided against appellants' contention. They further contend that if an award against them is proper, it should have been upon the basis of the proportion of the wages paid by Whipple, Inc., to the total wages received, which would result in an award against Whipple, Inc., for one dollar and twelve cents and against Hull Grummond Co., Inc., for eight dollars and eight cents per week. In this contention the appellants Whipple, Inc., and State Insurance Fund are correct, in view of the finding that at the time of the accident the employee was engaged in the service of both employers. The case cannot be distinguished from Matter of Jacobi v. Supreme Junior Coat Co. ( 268 N.Y. 654). The respondent State Industrial Board seeks to distinguish that case from the case at bar on the ground that there an employee regularly engaged in selling cloth coats was making a trip on which he was selling goods for that concern as well as another and was injured in an automobile accident. Here, as there, the employee was available for work for both employers and had not temporarily in part or otherwise left the employment of either. He was a night watchman, required to be in the building for the purpose of protecting the property for the benefit of Hull Grummond Co., Inc., his employer, and while engaged in that work he was doing cleaning for Whipple, Inc., his other employer, which necessitated the operation of an elevator, the operation of which was a part of his employment by Hull Grummond Co., Inc.
The order of the Appellate Division and the award of the State Industrial Board should be modified in accordance with this opinion and, as so modified, affirmed, with costs in this court and in the Appellate Division to Whipple, Inc., against Hull Grummond Co., Inc., and Globe Indemnity Co
CRANE, Ch. J., LEHMAN, O'BRIEN, LOUGHRAN, FINCH and RIPPEY, JJ., concur.
Ordered accordingly.