The real question is whether or not claimant’s employment continued during transportation to and from his work. This depends upon whether or not, by the contract of hiring, it was so stipulated “ positively or inferentially.” (Matter of Kowalek v. N. Y. Cons. R. R. Co., 229 N. Y. 489, 493.) There was no such positive stipulation, but there is, in my view, evidence from which it may be found that inferentially it was so stipulated in the contract of hiring. While eight hours constituted a day for the men working upon the property, claimant was not an eight-hour man. He was not only foreman; he also was watchman and was required on call to go to the premises at any time, Sunday or day or night, if any occasion required it. He was paid $125 per month. His general duties were to take care of the property, to take care of the fires, to see that they were put out, to look after *109the house; there was a hotel on the premises. He lived four miles from the hotel and there was no other means of conveyance to get there except by automobile; in performing his duties he covered a great deal of ground and he could not perform his work efficiently without an automobile. The president of the employer testified: “ Q. Was he made any allowance by the Nassau Point Club for the use of his automobile? A. No; that was included in his wages. I knew when we employed him that he had an automobile. Frankly, there was nothing definitely stated about having him come in with an automobile; I knew he thad one. That was taken into consideration. * * * Q. Was there any allowance made in his wages for the use of that automobile? A. No; except that it was taken into consideration, in giving him a salary. Q. Did he receive less money than if he didn’t own an automobile, or more? A. It wouldn’t have been practical at all to have him without an automobile. * * * Q. You say that you knew that he had a car — if you knew that he had a car, what bearing had that upon his employment with your company? A. Why, it shows that he could go on the property, get there within reasonable hour and come over any time.” Sometimes he did work for his employer before he arrived at the property in getting materials, but it was not known that he had any such duty on the morning of the accident. “ Q. You stated here that you paid him a salary of $125.00 on consideration because he had a car — suppose he had no car, what would you have paid him? A. I would not have employed him at all. Q. Did he use the car on your property? A. Yes. Q. Did he go around in it? A. Yes. Q. Did you make any allowance, plus salary? A. That was included in his wages — that was taken into consideration. Q. What would his salary have been, exclusive of this consideration, that you might have allowed him? A. I should say that having a car was worth $25.00 a month.”
If these matters, which were known to the parties and were taken into consideration when claimant was hired, had been expressed in words, there could be no question but that his transportation by his automobile to and from his work was within his employment. Though not so stipulated in words, it seems to me that, within the intent and meaning of the parties, it was in fact so stipulated. It was not a matter of indifference to his employer whether he went to and from his home in his automobile or on foot; it was to the employer’s direct interest that he should go back and forth in his car, in order that, among other things, when called he could go quickly. It was not stipulated that he should go over the property from place to place by automobile, but it was so intended and, if he had been injured in so doing, although he *110might have walked, he would have been in the course of his employment.
In Gibbs v. Macy & Co., Inc. (214 App. Div. 335; affd., 242 N. Y. -) a woman was employed to work in a store. She was called to court out of her regular working hours and went from her home to the court to give testimony against a person charged with theft in the store. While returning from court to her home she was injured in the public street and we held that her injuries arose out of and in the course of her employment, although the service which she. was performing was not stipulated in her contract, except by inference.
It seems to me the award in this case should be affirmed.
McCann, J., concurs.
Award reversed and claim dismissed, with costs against the State Industrial Board.