(dissenting).
I hesitate to differ from my brothers in the construction of a state law, which has been the subject of so many decisions in the state courts themselves. • Nevertheless, it does seem to me that Mrs. Kuenzli was not an “employee” within the meaning of the Workmen’s Compensation Act. Suppose that the Foley Manufacturing Com*207pany had not been an employer from whom she was independently entitled to compensation. If my brothers are right, she would in that case lose any right to indemnity for her injuries, and yet her compensation would be measured by only two dollars a week. I should think that that was a consequence which could not have been intended. On the other hand, it seems scarcely possible that the question whether she was an employee of the defendant in any sense depends on whether she was entitled to compensation as an employee of the Foley Manufacturing Company. At least, I do not think that decisions like DeNoyer v. Cavanaugh, 221 N.Y. 273, 116 N.E. 992, and Lewis v. Hotel St. Regis, 287 N.Y. 598, 38 N.E.2d 708, give color to such a conclusion. So I think we must decide the case as though her compensation from the defendant had been her only remedy.
It is true that in some cases casual employees have been held to be within the Act. Rheinwald v. Building Brick & Supply Co., 168 App.Div. 425, 153 N.Y.S. 598; Cummings v. Underwood Silk Fabric Co., Inc., 184 App.Div. 456, 171 N.Y.S. 1046. Nevertheless there comes a point where, although the injured person has in fact been employed in the sense that he has been engaged by another is acting in his business, his activities are so sporadic and trifling that he is not within the Act. Seymour v. Odd Fellows Home, 267 N.Y. 354, 196 N.E. 287; Ferro v. Sinsheimer Estate, Inc., 256 N.Y. 398, 176 N.E. 817. It is true that both these cases are readily distinguishable on the facts, and indeed it would be curious if we were to find a case on all fours; but they do serve, I think, to show that employment in the more comprehensive sense is not the test. I should suppose that, like so many 'other questions, this was one of degree, dependent as I have already suggested upon how far compensation, considering its certainty, could possibly be thought to be the equivalent of indemnity. That is indeed a very loose standard, but here the incommensurability was extreme; and the services were few, dispersed and wholly gratuitous. These circumstances, I think, ought to put her case outside the Act.