(dissenting). I dissent and vote to affirm the awards. As I read this record there is evidence from which the board was justified in finding that the decedents were employees and not independent contractors. Decedents were members of Automobile Earing Association, Inc. That corporation had an agreement with Kedenburg and Davidow. In reading that agreement we must look to the substance and not to the form. When this agreement is carefully analyzed it is quite evident that it is but a shallow subterfuge to evade the provisions of the Workmen’s Compensation Law.
The contention of the appellant carrier that the decedents were not covered by the insurance policy is clearly without any merit. At no time during the proceedings before the Workmen’s Compensation Board did the carrier raise the question that its policy did not cover the employee of Kedenburg and Davidow who were engaged in the midget auto operations. The representative of the carrier repeatedly declared at the hearings that the claims were being contested on the ground that the decedents were not employees. In its notice of controversy the carrier raised only the issue of the employer-employee relationship. There is testimony too on the part of Kedenburg that the- employers carried workmen’s compensation on the employees who were employed at the Freeport ¡Stadium. Then too following the decision of the referee the ^carrier requested a review of the referee’s decision. In that .application it urged only the issue of employer-employee relationship and made no reference whatever to the contention which it now raises that its policy excluded decedents. Under ¡those circumstances the carrier had waived that objection.
Foster, P. J., Bergan and Coon, JJ., concur with Brewster, J.; Heffernan, J., dissents, in a memorandum.
Decisions and awards reversed, on the law, and claims dismissed, with costs against the Workmen’s Compensation Board.