(dissenting). The question of whether one person engaged in work for another is the latter’s servant or an independent contractor can be determined by a general definition only when there is no dispute in the facts. If the evidence on the subject is conflicting it is a mixed question of law and fact; and the relation is determined as an ultimate fact. This conclusion is reached by applying legal principles to related facts and the inferences reasonably drawn therefrom.
The tests are simple but their application is often difficult. (Braxton v. Mendelson, 233 N. Y. 122, 124.) The rule prevailing in this State and other jurisdictions is that the principal element in determining whether the relation of master and servant exists is the extent to which the one undertaking the work is under the control or direction of the person for whom the work is done. (Baldwin v. Abraham, 57 App. Div. 67; affd., 171 N. Y. 677; Howard v. Ludwig, Id. 507, 510; Meredosia Levee & Dr. Dist. v. Industrial Comm., 285 Ill. 68; Van Simaeys v. Cook Co., 201 Mich. 540; State ex rel. Virginia & R. L. Co. v. District Court, 128 Minn. 43; 150 N. W. 211; Jones v. Penwyllt, etc., Co., 6 B. W. C. C. 492.) Often it is helpful to consider other circumstances, such as the fact that the workman furnishes his own help, tools or materials and is paid in a particular way. (Braxton v. Mendelson, supra.) But considered separately or together, these incidents are not *547absolutely controlling for in the last analysis it is the right of the employer to control or direct the work of the other that furnishes the test. (Baldwin v. Abraham, supra, 73; Wyllie v. Palmer, 137 N. Y. 248, 257; Smith v. State Workmen’s Ins. Fund, 262 Penn. St. 286; Amalgamated Roofing Co. v. Travelers Ins. Co., 300 Ill. 487.)
Here the writing was indefinite and inconclusive. It referred to a previous conversation and was incomplete as to payment and the methods or details of doing the work. By their practical construction of its terms in the operations undertaken, it appears that the corporation not only furnished some men for the work but kept the time and paid the wages of all of them. The president required claimant to talk with him before hiring men, renting machinery or doing anything else; he sent out men with a foreman to assist; and was constantly on the job supervising and giving directions as to the details of the work. He gave directions to claimant to have the men work overtime. He discharged one man without consulting claimant; laid off teams, and even gave directions to claimant as to what he should personally do — in fact it is said that claimant was injured while following directions so given. From these facts a reasonable inference might be drawn that claimant was a superintendent paid a commission for his services.
These circumstances might properly be considered by the triers of the facts in reaching the conclusion as an ultimate fact that the claimant was a servant and not an independent contractor. (Burke v. City & County Contract Co., 133 App. Div. 113; Abromowitz v. Hudson View Contr. Co., 188 id. 356; affd., 228 N. Y. 509; Matter of Fancher v. Boston Excelsior Co., 235 id. 272; Matter of McNally v. Diamond Mills Paper Co., 223 id. 83, 85; Decatur R. & L. Co. v. Industrial Board, 276 Ill. 472; Lewis v. Stanbridge, 6 B. W. C. C. 568.) The extent of the control or supervision is one of the questions to be considered in determining the relation. (Fischer v. Industrial Comm., 301 Ill. 621, 628.) All these things seem to have been brought to the attention of the Industrial Board when it found claimant was employed as a superintendent. The" matter had been before them on a prior occasion when they had reversed the decision of the referee that claimant was an independent contractor. The present finding as to the status of the parties, with evidence to support it, is final and conclusive regardless of how we might have, determined the question of fact on the same evidence. (Workmen’s Comp. Law, § 20, as amd. by Laws of 1925, chap. 660; Benjamin v. Rosenberg Bros., 180 App. Div. 234; affd., 223 N. Y. 569; Matter of Dale v. Saunders Bros., 218 id. 59, 63.)
The award is for four weeks’ loss of earnings. It appears that *548claimant was on crutches for that period or longer. He was able to go in an automobile and exercise some supervision over work on another contract, but he had to employ other men to do his regular work. The evidence on the subject of his actual loss is somewhat indefinite, but as the award is only eighty dollars for loss of earnings because of a broken foot, I think the proof maybe deemed sufficient to support it.
I vote for affirmance.
Award reversed and claim dismissed, with costs against the State Industrial Board.