Claim of Lederson v. Cassidy & Dorfman

John M. Kellogg, P. J.:

This is an appeal from awards of compensation made by the State Industrial Commission February 25, 1920, and June 11, 1920. The employer needed a man to run one of its machines. An employee brought with him the claimant, who had a union card and representated himself to be an operative. The finding is that the employer informed the claimant that he would like to see whether or not the claimant knew how to operate a machine before he would hire him. The claimant undertook to prove his qualifications by operating a machine assigned to him by the said William Dorfman and before actually starting on any work on the machine, and while preparing the machine for the purpose of doing certain work assigned to bim by *614William Dorfman, which was to test his ability, and while engaged in the regular course of his employment in adjusting a strap on the machine, which had become loose, the left hand of the claimant got caught in the said machine, thereby causing him to sustain a strain and possible-fracture of the left shoulder, together with lacerations of the body, as a result of which injuries he was disabled from October 14, 1919, to February 25, 1920, on which date he was still disabled.”

It seems to me there was clearly no contract of employment. The respondents seek to sustain the award by cases where student brakemen had been put upon a train to learn the business and were injured while learning. But there the students were working with the understanding that they were to have compensation when they learned to do the work. Here the company did not undertake to teach the claimant; he claimed to be an operator and it was understood that before any question of employment, wages or work was discussed, he must demonstrate that he was an operator. The employment or non-employment depended upon the result of the test. • It cannot be said that while making the test he was an employee; he was simply trying to prove that he was fit to become an employee. I think the case is fairly within Brassard v. Delaware & Hudson Co. (186 App. Div. 647). And see Varney v. Ditmars (217 N. Y. 223, 228).

I favor a reversal and a dismissal of the claim on those authorities.

All concur, except Kiley, J., dissenting, with a memorandum.