The award herein has been made under the supposed authority of section 44 of the Workmen’s Compensation Law. The question now presented is whether such award is permitted by said section.
The deceased was employed by the Nu-Art Advertising Company, a corporation, his work consisting of the resurfacing of rubber printing plates, which work necessitated the use of and direct contact with benzol, and exposed him to the fumes thereof.
The Board has found that while thus working for said employer, and on or about Labor Day, 1931, he contracted the occupational disease of benzol poisoning. About November 1, 1931, he left the employment of said corporation and became a copartner in the firm of the Parazin Printing Plate Company, for which firm he did the same kind of work, in which he continued the similar use of benzol. While thus working in the business of the copartnership, he became disabled from said disease, which later caused his death. The Board has fixed the date of disablement as June 1, 1932, but has made the award against the former employer, the corporation appellant herein.
So far as necessary for consideration here, said section 44 provides as follows: “ The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If, however, such disease was contracted while such employee was in the employment of a prior employer, the employer who is made hable for the total compensation as provided by this section, may appeal to the board for an apportionment of such compensation among the several employers who since the contraction of such disease shall have employed such employee in the employment to the nature of which the disease was due. * * * If the board find that any portion of such compensation is payable by an employer prior to the employer who is made liable to the total compensation as provided by this section, it shall make an award accordingly in favor of the last employer, and such award may be enforced in the same manner as an award for compensation.”
*388Section 38 provides, in substance, that disablement resulting from an occupational disease shall be treated as the happening of an accident, within the meaning of the Workmen’s Compensation Law, and that the procedure and practice provided by such law shall apply thereto.
From the above recited facts, it appears that the happening of the accident, i. e., the disablement, occurred while the deceased was a member of and engaged in the work of the copartnership. Therefore, at the date of the disablement, he was not an employee within the meaning of the Workmen’s Compensation Law. (LeClear v. Smith, 207 App. Div. 71; Matter of Munter v. Ideal Peerless Laundry, 229 id. 56; Matter of Duprea v. Duprea Brothers, 224 id. 673; Matter of Lyle v. Lyle Cider & Vinegar Co., 243 N. Y. 257.)
By subdivision 7 of section 2 injury is defined as meaning “ Only accidental injuries arising out of and in the course of employment.”
Section 10 makes every employer liable to his employees for compensation “ for their disability or death from injury arising out of and in the course of the employment.”
There is no “ compensation due ” and the statute imposes no liability until the happening of an accident or the occurrence of disablement from a specified occupational disease while in the employment of the employer sought to be made liable. This is made clear by section 39 which, in part, is as follows: “ Right to compensation. If an employee is disabled or dies and his disability or death is caused by one of the diseases mentioned * * *, he or his dependents shall be entitled to compensation for his death or for the duration of his disablement.”
Thus, not only is disablement necessary to give rise to compensation, but it must be the disablement of an employee, viz., one who at the time of disablement is working for the employer against whom liability is asserted.
The disablement did not eventuate while deceased was working for the employer corporation, but happened while he was occupied in the business of his firm; in other words, while he was working for himself. The corporation appellant is, therefore, not hable for “ total compensation ” herein; neither is it obligated to contribute a proportionate part thereof under section 44. That section contemplates contribution by a prior employer only in a case where disablement occurs to the employee while working for a subsequent employer. As already pointed out, at the time of the disablement, the deceased was not working for an employer, he was working for himself. In such case the Workmen’s Compensation Law has no application; the provisions of section 44 do not cover such a situation.
*389The award should be reversed and the claim dismissed, with costs against the State Industrial Board.
McNamee and Crapser, JJ., concur; Heffernan, J., dissents with an opinion, in which Hill, P. J., concurs.