Opinion
November 10, 1920.
Everett, Clarke Benedict [ Herman S. Hertwig of counsel], for the appellant.
Charles D. Newton, Attorney-General [ E.C. Aiken, Deputy Attorney-General, of counsel], for the respondents.
The employer conducts the news-stands at the various stations of the Interborough Rapid Transit Company in New York city. At such news-stands are sold periodicals and confectionery. The merchandise is collected and kept at 39 Park Place where it is loaded on trucks and then distributed to the different news-stands. It is not disputed that in connection with such business there are more than four "workmen or operatives" within the meaning of the second group 45 of section 2 of the Workmen's Compensation Law (as added by Laws of 1918, chap. 634). There are many more employees who cannot be classified as "workmen or operatives." Among the large number who cannot be thus classified is the claimant. He was a salesman at one of the news-stands, of which there were 125. He received an injury which arose out of and in the course of his employment. The contention is that because he was not a workman or operative he is not within the protection of the act. Such construction of the statute cannot be upheld. Section 2 divides employments into various groups which it characterizes as "hazardous employments." The second group 45 includes all employments not before enumerated in which there are engaged four or more workmen or operatives under conditions more specifically described in said group. All employees of a "hazardous employment" are within the protection of the statute irrespective of whether or not their particular duties bring them within the hazards of the employment. (Workmen's Compensation Law, § 3, as amd. by Laws of 1917, chap. 705; Matter of Dose v. Moehle Lithographic Co., 221 N.Y. 401; Spang v. Broadway Brewing Malting Co., 182 App. Div. 443; Joyce v. Eastman Kodak Co., Id. 354.) That is true of all the other groups of section 2 and it is impossible to make any distinction in respect to second group 45.
The award should, therefore, be affirmed.
Award unanimously affirmed.