On the 25th day of March, 1921, the employer, the Beth Israel Hospital, reported that while the claimant, Dr. Solon S. Bernstein, was in its employ on the 21st day of March, 1921, and while sewing up a cadaver, he stuck the needle with which he was working into his right hand setting up “ infection and lymphanagitis.” In the first instance the State Industrial Board denied compensation on the ground that claimant was “ not an employee under the law.” On subsequent hearings, and as a consequence thereof, the claimant was awarded compensation. The appeal from that award presents a single question which is stated by the carrier’s attorney as follows: “ The question in this case, Mr. Referee, has been thoroughly discussed, whether or not this doctor shall be considered an employee, the claimant in this case, it is our con*420tention, cannot be considered an employee, and his work will not come under the Compensation Law. He is not a worker or an operator. He does not work as a workman, which can be considered under the Compensation Law. He is simply training there. He is an attendant of the hospital.” The injuries sustained and the resulting consequences are admitted. It was asserted upon the hearing, and nowhere denied, that the hospital elected to come under the Workmen's Compensation Law; that this claimant and ten others similarly situated were intended to be covered; and that the carrier collected the premiums therefor. It now seeks to avoid liability. It was attitude of this kind that inspired the enactment of section 55 of chapter 615 of the Laws of 1922, Workmen’s Compensation Law. The argument advanced by the appellant, carrier, is that claimant was an “ interne ” in the hospital. That term as defined in Dr. Geo. M. Gould’s Medical Dictionary is, “ a resident physician of a hospital.” That by reason thereof he is not covered and could not, under any circumstances, be covered by the Workmen’s Compensation Law. The principal case relied upon by appellant to sustain its contention is Schloendorff v. New York Hospital (211 N. Y. 125). In that case the patient sued the hospital for an injury following an operation to which she claimed she did not consent. She was denied the relief sought, first, because of the doctrine of waiver, and second, because the physician operating was an independent contractor in that in performing the operation he was not called upon to obey instructions from the hospital as to how he should operate. Doctors serve without pay on cases where they are called in from an independent practice of their own entirely distinct from the hospital; they consent to come, not as an employee, but without restriction; they perform the act as their own conception of the relief sought shall dictate. We may well accept the rule laid down in Kueckel v. Ryder (54 App. Div. 252). as quoted by appellant in its brief. The very opposite is apparent in the case at bar. The distinction between this case and Hexamer v. Webb (101 N. Y. 377) is equally clear. As there is no relation of patient and hospital here, the appellant must necessarily urge that claimant was an independent contractor. It must admit that claimant was either an independent contractor or an employee. We cannot make a contract advantageous to the carrier if, in fact, none such existed or was so intended by the parties making it. That the relation was contractual must be admitted. The Beth Israel Hospital knows what contract it made with the claimant, and through its superintendent has testified as to what that contract was. Because the claimant was a physician he was not precluded from hiring to the hospital as an employee. *421He was hired for two years and as compensation received Ms room, board, laundry work and three uniforms a year, conceded to be of the value of twenty-five dollars a week. If he failed in the performance of the duties assigned to Mm by reason of incompetency or otherwise he could be discharged. The superintendent testified: “ They [speaMng of the internes] are not independent. They are employed to serve under the attending physicians and carry out their orders. * * * He was for a period ‘of time to carry out all my orders and the orders of the attending physicians under whose orders he was to take orders and carry them out. * * * It is the rule of the hospital the members of the house staff [wMch included tMs claimant] cannot practice their profession. * * * Outside or inside. They are not there as doctors creating a case. They are carrying out the orders of a doctor just as I would carry out the orders of my family doctor in the treatment of a case in my own family.” The claimant swears he was an employee, that he acted under other directing minds. Under tMs state of facts the State Industrial Board found as a fact that claimant was an employee.
I favor affirmance of the award.
Van Kirk and Hasbrotjck, JJ., concur; Hinman, J., dissents, with an opinion, in which H. T. Kellogg, Acting P. J., concurs.