The defendant employer requested the plaintiff to go from Brooklyn to Jefferson, Penn., and work for it on a particular job, at a fixed wage, with transportation added, the usual terms of employment prevailing on the job. Plaintiff complied with the request and went to work upon the job pursuant to it. When he arrived at Jefferson, if the company had repudiated the contract, he undoubtedly could have recovered for his transportation and such damages' as he had fairly sustained.
The contract of employment did not contemplate any Service in New York and the plaintiff was not an employee of the company for any service in this State. This case is •more favorable to the appellant than Matter of Gardner v. Horseheads Construction Co. (171 App. Div. 66). But that case has been somewhat damaged and left in an uncertain position by Matter of Post v. Burger & Gohlke (216 N. Y. 544); Matter of Klein v. Stoller & Cook Co. (220 id. 670), and Matter of Fitzpatrick v. Blackall & Baldwin Co. (Id. 671). These later cases *509have caused us at times to ignore the Horseheads case, but there seems to be some life remaining in it. (Matter of Smith v. Heine Boiler Co., 224 N. Y. 9.) This latter case gives me courage to again assert the doctrine of the Horseheads case and to maintain that the employment in this case is not within the New York Workmen’s Compensation Law. If I am wrong in this position, the question is so much involved in doubt that the election by the claimant to take compensation under the Pennsylvania law, and his receiving such compensation for about a year, is binding upon him and, under the circumstances of this case, stands in the way of compensation here.
Award reversed and claim dismissed.