Opinion
Argued October 4, 1917
Decided October 16, 1917
Joseph F. Murray and Robert M. McCormick for appellants. S. John Block for claimant, respondent.
Merton E. Lewis, Attorney-General ( E.C. Aiken of counsel), for State Industrial Commission, respondent.
Edith A. Hawk was the owner of an apartment house at No. 150 West Eightieth street, borough of Manhattan, New York city. The claimant was superintendent and general repairman of the building. His duties were to make such general carpentering and plumbing repairs as he was able to make and to operate the boilers which supplied the steam heat to the premises. The owner operated this steam heating plant for profit included in the rents paid by the tenants. On January 19, 1916, Kammer went into the storeroom in the basement to obtain a radiator to be put in an apartment for one of the tenants who had complained that the apartment was cold. His purpose was to get the radiator and to connect it up with the heating apparatus so that the apartment might thereby be supplied with heat. In lifting the radiator from a lot of other radiators located in the storeroom, the radiator tumbled over and fell upon his right great toe crushing the same. For this injury he has been awarded compensation by the state industrial commission and the Appellate Division has affirmed the award.
Was the employee at the time of injury engaged in any employment or work covered by the Compensation Law?
Group 42 of section 2, as it existed in January, 1916 (Cons. Laws, ch. 67; L. 1914, ch. 41) specified "plumbing, sanitary or heating engineering; installation and covering of pipes or boilers." The lifting of a radiator to connect it up for heating purposes was not heating engineering nor the installation and covering of pipes or boilers. That such work was not included within these terms is evident from the amendment to the law passed subsequently and in the same year. (L. 1916, ch. 622.) Group 42 was amended so as to read "plumbing, sanitary lighting or heating installation or repair;" and the word "engineering" was dropped. So, too, group 22 was amended by the same act to include "heating and lighting." The words "maintenance and care of buildings" were not added to group 42 until 1917. (L. 1917, ch. 705.)
The claimant cannot recover for reasons similar to those expressed in Matter of Schmidt v. Berger ( 221 N.Y. 26).
The order of the Appellate Division should be reversed and the claim dismissed, with costs in this court and in the Appellate Division to the appellants against the state industrial commission.
HISCOCK, Ch. J., CHASE, COLLIN, HOGAN, CARDOZO and McLAUGHLIN, JJ., concur.
Order reversed, etc.