Saunders Brothers, the alleged employers, are engaged as manufacturers of brick at Fleming, near Auburn. They employ a number of teamsters to drive their wagons, and from time to time Saunders Brothers have furnished these teams, with drivers, to one Patrick Walsh, who conducted a sandbank *533near by, for the purpose of delivering sand to patrons at Auburn. Frank Dale was one of the teamsters so employed, and on the 10th day of October, 1914, was sent by Saunders Brothers to Patrick Walsh for the purpose of performing this delivery service for the said Walsh. The team and wagon were placed by the servants and employees of Walsh, and while Dale was engaged in shoveling sand into the wagon the sand from the bank caved in, falling upon Dale, producing injuries which resulted in his death the following day. The State Industrial Commission as the successor to the State Workmen’s Compensation Commission, has awarded damages to the widow and children against Saunders Brothers and their insurance carrier, and these appeal to this court upon the ground that Dale was, at the' time of the accident, in the special employ of Walsh, who became liable for the injuries. In this contention the appellants are clearly in harmony with this court in Matter of Gimber v. Kane Co. (171 App. Div. 958), and unless we were in error in that case the determination in the present case cannot stand. No distinction can be made in the facts, so far as we are able to discover; in both cases the driver was employed generally by one party and was by each party hired out, with a wagon and team, to another, and while so employed was injured in the performance of the duties of the particular occupation. We there held, upon the authority of Miller v. North Hudson Contracting Company (166 App. Div. 348), that the employee became the servant of the corporation conducting the particular work, and that such corporation, or its insurance carrier, was liable for the damages, affirming the award of the Commission. Just how the Commission, upon practically the identical state of facts, can now be permitted to make an award against the original employer we are unable to understand.
The theory of the Workmen’s Compensation Law, as we understand it, is that the particular industry in which the accident occurs is to bear the loss; it is to become a charge upon the production of such enterprise (Ives v. South Buffalo R. Co., 201 N. Y. 271, 286), and if Dale had been injured while delivering brick for the initial employer, a manufacturer of brick, this would have come within the theory of the law. But nothing of the kind occurred; the accident happened to Dale *534while he was engaged, in the work of operating a sand bank. He was generally employed as a teamster, but he was specially engaged at the time of the accident in shoveling sand from a sand bank into a wagon in company with others—he was doing the work of Patrick Walsh, whose business was that of an operator of a sand bank, under group 19 of section 2 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), and it was this industry which should, under the theory of the law, be charged with the damages. The statute provides (§ 2) that the “ compensation provided for in this chapter shall be payable for injuries sustained or death incurred by employees engaged in the following hazardous occupations,” and (§ 3, subd. 4) that “ employee ” means “ a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same upon the premises or at the plant, or in the course of his employment away from the plant of his employer,” and (§' 10) that every employer shall provide compensation “for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment.” “ Personal injury ” is defined by the statute (§ 3, subd. 7) to “mean only accidental injuries arising out of and in the course of employment,” and “employment” is defined (§ 3, subd. 5) as including “ employment only in a trade, business or occupation carried on by the employer for pecuniary gain,” and an “employer” is defined (§ 3, subd. 3, as amd. by Laws of 1914, chap. 316) as one “employing workmen in hazardous employments.” Saunders Brothers were, it is true, engaged in one of the hazardous employments, but Dale was not injured because of anything arising out of and in the course of his general employment as a teamster in operating a brick-making plant; he was injured to his death while performing a special employment in a sand bank. He was not engaged in the “operation, otherwise than on tracks, on streets, highways, or elsewhere of cars, trucks, wagons or other vehicles, and rollers and engines, propelled by steam, gas, gasoline, electric, mechanical or other power or drawn by horses or mules ” (§ 2, group 41), but was performing the work of a shoveler of sand, and this employment was being carried on by Walsh for *535pecuniary gain; he was the employer who was engaged in the particular hazardous occupation in which Dale met his death, and an “employee ” is, as we have seen, “ a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same [employment] upon the premises or at the plant, or in the course of his employment away from the plant of his employer.” Saunders Brothers had no occasion to use Dale in shoveling sand; they were not engaged in this hazardous occupation. They were manufacturers of brick, and having more teams and men than they needed to use in their own business at this particular time they temporarily transferred their team and driver to the service of Walsh, and it was while this operation of a sand bank—the hazardous occupation of Walsh—was in progress that the accident happened. Clearly, if the spirit of the act is to have effect, and the accidents of a given industry are to become a charge upon the product of such industry and be absorbed by the purchasers of that product (Ives Case, supra), then the injuries which Dale sustained become a proper charge, not upon Saunders Brothers, but upon Walsh, whose industry was being developed through the efforts of Dale. A long line of cases in law actions sustain the theory that the employee of a general employer may become the employee of a special employer, and we believe that the doctrine is peculiarly applicable to the case presented upon this appeal. At any rate this court is committed to the doctrine, and this calls for a reversal of the award.
The award of the Commission should be reversed and set aside.
Howard, J., concurred.
Award affirmed.