Claim of Bargey v. Massaro Macaroni Co.

Kellogg, J.:

The macaroni company was occupying a building which had been an old hotel. It purposed making ‘upon the ground floor of the part of the building repaired a saloon, and to use the second and third floors in its general business. The work in changing the floors and roof was done by the intestate, under a contract by which he was to do the work and furnish the material for $500. That contract was performed by him. A part of the time he had men working with him. As the work progressed, from time to time the company would have extra work done, for which he was paid by the hour. Before the contract work was completed, extra work was contemplated of putting a partition through the saloon part of the building, thus making the saloon smaller than first intended, and using the other part, which was partitioned off from the saloon, as a machinery room for the company. The studding for the partition between the saloon and the new machinery room had been put up as extra work while the contract work was being performed. A delay occurred, perhaps to permit the building to settle, and then the deceased was requested to come on and finish the partition. He was in the saloon part, nailing lath to the studding over the door, when the accident occurred. He was a general carpenter, doing such work as he was called upon to do for different people, usually by the hour, but sometimes took jobs. He was not in the general employ of the company, but was the man it usually employed to do little odd jobs about its building. He never did any work in the macaroni business; 'his only work for the defendant was doing work upon or about its buildings. I do not think he was an employee in a business declared hazardous by the Workmen’s Compensation Law. Clearly he was not engaged in the macaroni business, but his sole business was as a carpenter. The company was not carrying on the carpenter business, or doing any carpenter work for a profit; it was making repairs and improvements upon its real estate and hired a general workman for that purpose. If a man in a business not hazardous employs a carpenter to do some work upon his property, like fixing a window or a door, I do not think the person performing the work is an employee engaged in the hazardous business of structural carpentry. A judge who hires an ordinary carpenter to come to his office or house and put in a new window is not engaged in a hazardous business under the law. “ Employment ” is defined by subdivision 5 of section 3 of the law to include “ employment only in a trade, business or occupation carried on by the employer for pecuniary gain.” If the employer in the hazardous employment uses his regular employees in doing something which may not be a hazardous employment in itself, but the work is a part of his general employment and incident to it, we may well say that the employee received the injury while engaged in a hazardous employment. But where a man engages a carpenter by the hour to do some work upon his premises in the way of improvements, I cannot feel that he is engaged in the hazardous employment of structural carpentry or repair of buildings as contemplated by group 42 of section 2 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41). I, therefore, favor a reversal.

All concurred, except Woodward, J., dissenting, in opinion.