Opinion
October 2, 1936.
Appeal from an award to the claimant against Harris Gordon, non-insured employer. The employer conducted a farm which belonged to his wife. Upon this farm was a woodlot from which wood was cut for farm purposes. He owned a buzz saw and tractor which was used to saw the logs into lumber or boards of dimension size, the lumber being used to construct and repair buildings on the farm. It was a small mill capable only of cutting 1,600 feet of lumber a day. Two neighboring farmers had brought some logs over to be cut into dimension size for use on their farms. It was while sawing these logs that the accident happened. The mill was not operated regularly and had been run only six days. It had not been used for two years before. The logs cut off the neighbors' farms amounted to only a few thousand feet for which he received the sum of eighty dollars, which was not more than sufficient to pay for the work. Three men were employed. On these facts the Industrial Board held that the employer was engaged in business for pecuniary gain. That claimant was not employed in farm labor at the time of the accident. The employer was not engaged in business for pecuniary gain. He was doing a favor for neighboring farmers more in the way of exchange of work than for gain. He was not engaged in any trade or business or occupation for pecuniary gain. It was an isolated favor that he did for his neighbors, and although he received some compensation for it, less than four people were employed, and the operation covered a very short space of time, and the lumber was sawed as a matter of general neighborhood custom or accommodation among farmers. He was not operating a saw mill in the sense that the term is generally used or understood. There is no dispute that less than four persons were employed. Award reversed and claim dismissed, with costs against the State Industrial Board, on the authority of Matter of McAllister v. Cobb ( 237 App. Div. 674). Hill, P.J., Rhodes, McNamee, Crapser and Bliss, JJ., concur.