The question, that claimant was not engaged in hazardous employment as defined by the Workmen’s Compensation Law (§ 3, subd. 1, as amd. by Laws of 1917, chap. 705), when he received his injury, is not raised upon this appeal. Claimant testified that in getting a basis for the amount of premium the Chic Coat and Suit Company, Inc., for which he worked, should pay, his wages and the wages of his father were figured in the payroll and the premium was paid accordingly. The accident occurred January 15, 1919-, and the force of Matter of Bowne v. Bowne Co. (221 N. Y. 28), the sole authority relied upon by appellant, was destroyed by the amendment to sectional of the Workmen’s Compensation Law (Laws of 1916, chap. 622), by adding subdivision 6, which reads as follows: “ Any insurance carrier may issue policies, including with employees, employers who perform labor incidental to their occupations, such policies insuring to such employers the same compensations provided for their employees, and at the same rates; provided, however, that the estimation of their wage values, respectively, shall be reasonable and separately stated in and added to the valuation of their pay rolls upon which their premium is computed. The employer so insured shall have the same rights and remedies given an employee by this chapter.” The claimant having testified that his wages were included in the payroll, which payroll at the beginning of the term of insurance is a process of estimation always, it will be presumed that the insurer employed such method of figuring as *775complied with the subdivision and gave to this corporation an enforcible policy; that the appellant insurance carrier did not commit a fraud in accepting its money at the time knowing or believing it could escape liability in the event a claim was made under the policy it was then issuing. The burden of proof shifted with that evidence of the claimant; he presented his policy to the Commission; the carrier could have put it in evidence, and thus demonstrate that the claim was unfounded, or it could have produced its records and could have shown that a different basis than the one contended for by claimant was had; it was not done; the insurance carrier having the evidence in its possession, under its control, the failure to produce it should not raise a presumption against the claimant; the reverse should be presumed. Hubbs v. Addison Electric Light & Power Co. (191 App. Div. 765) purposed to show and did show that cases following the rule laid down in Matter of Bowne v. Bowne Co. (supra) after the addition to section 54 of subdivision 6, were not in accord with the statute as so amended. That this is a small corporation, and that its stockholders and officers go forth from the same paternal roof does not change its character as a legal entity entitled to the protection of insurance under the Workmen’s Compensation Law, if it seeks to avail itself of that privilege and consequential benefits. The distinction between the rule held here and the Hubbs Case (supra) impresses me as extremely technical. Any benefit that might flow from the application of the rule suggested in the opinion for reversal, in favor* of appellant, was lost when it failed to meet the burden of proof cast upon it by claimant’s evidence.
I favor affirmance.
Award reversed and claim dismissed.