Opinion
286 A.D. 1048 144 N.Y.S.2d 775 Claim of Fred MEYER, Respondent, v. TOPS TEMPORARY PERSONNEL and New Amsterdam Casualty Company, Appellants, and Manufacturers Safety Deposit Company and Massachusetts Bonding and Insurance Company, Respondents. Workmen's Compensation Board, Respondent. Supreme Court of New York, Third Department October 6, 1955.
Bernard F. Farley, New York City, for appellants.
Mercia Matthews, New York City, for claimant-respondent.
Joseph D. Edwards, New York City (Ralph S. Stowell, New York City, of counsel), for respondent Mfrs. Safety Deposit Co.
Jacob K. Javits, Atty. Gen. for respondent, Workmen's Compensation Board.
Before FOSTER, P. J., and BERGAN, COON, HALPERN and ZELLER, JJ.
PER CURIAM.
Appeal by Tops Temporary Personnel and its insurance carrier from a decision relieving Manufacturers Safety Deposit Company and its insurance carrier from paying an award of compensation to the claimant.
The Workmen's Compensation Board found that Tops was the sole employer of claimant and that its carrier should pay the award. Tops was engaged in the business of supplying temporary office help to business and banking firms in the New York City area. On April 16, 1951, claimant, a retired police officer, filed an application with Tops for temporary employment. He was referred to Manufacturers and was interviewed by one of its officers. Claimant was instructed to report for work at Manufacturers as a vault custodian on April 19, 1951. He worked at various branches of the Deposit Company in that capacity until July 28, 1952, when he was injured during the course of his work.
Tops paid claimant his wages, deducted his withholding taxes, social security contributions and disability insurance premiums and covered him with workmen's compensation insurance. Tops, in turn, received from Manufacturers the remuneration it paid to claimant plus an additional sum of twenty-five cents per hour. Manufacturers instructed claimant how to perform his duties and had the right to terminate the work performed by him for it at any time. Manufacturers did not consider claimant one of its employees and he was not invited to participate in the recreational activities engaged in by Manufacturers' own employees. At the time claimant filed his application for employment with Tops, he was required to sign an instrument acknowledging that he would be 'unconditionally and for all purposes' the employee of Tops and not the employee of any firm to which he might be assigned.
The Board could have found that Tops was the general employer of claimant and Manufacturers his special employer. It would then have had the power to assess the award against both or solely against either and upon this record an assessment solely against Tops would have been justified.
Award and decision unanimously affirmed, with costs to the Workmen's Compensation Board against the appellants.