Opinion
November 14, 1951.
Appeal from Workmen's Compensation Board.
The sole question here is whether or not the Workmen's Compensation Board has jurisdiction of the claim. Claimant was a resident of the State of Pennsylvania and was working there for a man named Lauffenburger. Lauffenburger entered into a contract with the Hallen Company, Inc., the employer, to act as a field manager in New York and other States. By the terms of this agreement Lauffenburger was to supply the labor and foreman and the employer was to pay all wages. Lauffenburger instructed claimant and other workers to go to Buffalo and to report to the representative of the employer, a man named Adams. Claimant worked in Buffalo and Syracuse for some periods of time and he was then sent to the State of Indiana where he was injured on October 29, 1948. After he left Pennsylvania claimant was on the payroll of the employer and was paid by it at the rate fixed by the union for the particular locality where he was working. All claimant's wages were paid from the New York office of the employer. As a matter of fact, Lauffenburger himself was an employee of the company. The work which claimant performed in Indiana was incidental to the regular business of the employer in the State of New York. The employer, a New York corporation, had its only office in the State of New York where all its records were kept and from which office all authority emanated. The work in Indiana was clearly incidental to the operations of the employer in the State of New York and claimant's activities in Indiana were transitory in nature and incidental to his basic employment in this State. Award affirmed, with costs to the Workmen's Compensation Board. Heffernan, Bergan and Coon, JJ., concur; Foster P.J., and Brewster, J., dissent, in the following separate memoranda. FOSTER, P.J. I am unable to distinguish on principle this case from the case of Matter of Amaxis v. Vassilaros, Inc. ( 258 N.Y. 544), or the case of Matter of Zeltoski v. Osborne Drilling Corp. ( 264 N.Y. 496). I, therefore, dissent and vote to reverse and dismiss the claim. BREWSTER, J. The very nature of the business of the employer, the Hallen Company, Inc., called for its work performance at definitely fixed locations within and without the State of New York. Having undertaken a contract for work of that nature, but for which it found its own organization not equipped to perform, it engaged one Lauffenburger to procure and supply the necessary labor force and to supervise and direct it to the completion of the job. Lauffenburger was not in its general employ, but in its arrangement with him the labor force he supplied became, at least ad hoc, the employees of the Hallen Company. Among these was claimant, a steel construction workman, a resident of Pennsylvania, who was injured while at work in the construction of a steel storage tank at Hessville, Indiana. He had become an employee of the Hallen Company through a hiring of his labor by Lauffenburger in Pennsylvania. When injured claimant's work was wholly confined to the fixed location of the steel tank then under construction in Indiana. No feature of his employment pertained to anything else. It bore no other relation to his employer's business either directly or incidentally. It involved no other duties and was subject to no supervision or control except as exercised by or through Lauffenburger in that particular kind of work wherein he met with injury. His employment was peculiar in origin and arrangement and special and single in objective. The project wherein he thus labored was not incidental to the Hallen Company's business. Instead it was an integral part thereof which was to form a completed unit of one of its undertakings. I see nothing which may be regarded as geographically mobile in the nature of claimant's employment by the Hallen Company. There is nothing to indicate but what his employment in that unit of the undertaking was to carry through to its completion, and there is no evidence that it was casual, transitory, temporary or ambulatory. That under the aforesaid origin of his employment he had done similar work, at fixed locations in this and other States, or might, but for his injury have, through the agency of Lauffenburger, been continued in that kind of employment — such to my mind does not so affect the basic relevant nature of his employment as to locate its place elsewhere than where he was working when injured. ( Matter of Cameron v. Ellis Constr. Co., 252 N.Y. 394; Matter of Amaxis v. Vassilaros, Inc., 258 N.Y. 544; Matter of Zeltoski v. Osborne Drilling Corp., 264 N.Y. 496; Matter of Baduski v. Gumpert Co., 277 App. Div. 591, and cases cited.)