day. The extra 80 cents per day paid for each man he figured compensated him for the use of his brushes, implements, the cost of compensation insurance, and the incidents of the employment, with perhaps a little profit. He took a contract to perform certain work upon the Syracuse house for $175, and it was understood that certain other work, the amount of which was unknown, was to be done for 60 cents per hour. The job work had been finished and paid for, and he and his other employee were engaged in kalsomining the walls of the parlor, in the downstairs apartment, March 13, 1917. The appellant employer's wife saw a rough spot in the ceiling in the parlor, which she thought ought to be smoothed out before it was kalsomined. Her husband said:

"You can plaster; can't you smooth that up? I can't get a man for a small job like that."

The claimant said:

"I could, but I did not want to, as I did not have the tools." He went out and got some plaster and a trowel (which was worn out), and while plastering the spot some of the lime fell into the claimant's eyes, causing the injury complained of.

[1] The insurer contended before the Commission, and contends here, that the insurance related solely to the work upon the road in connection with the Sandy Creek job, and did not in any way cover the work upon his house at Syracuse. Attached to the policy is a declaration which furnishes the specifications and makes the application of the policy definite. Item 3 of the declaration states the "locations of the factories, shops, yards, buildings, premises, or other work places of the employer, by town or city, with street and number," as "Sandy Creek, Oswego County, N. Y." The "kind of trade, business, profession, or occupation (manual classification)" is stated as "State or municipal road or street making, including culverts not exceeding ten feet span; all operations except quarrying and blasting." Under the heading "Location of All Places Where Operations are to be Conducted" we find: "Sandy Creek, Oswego County, New York." In specification M, the words, "Employees engaged in the repair, alteration, and construction of buildings, structures, or plants (except machinery)" are followed by the word "None." A careful perusal of the policy, and the specifications, satisfies us that it was issued to cover the employees engaged in road building and work incident thereto. The employee need not necessarily be at work all the time at Sandy Creek, but his work must be incident to that work. The statement in the policy that none of the employees are engaged "in the repair, alteration, and construction of buildings, structures, or plants" seems to exclude these repairs from the policy. The respondent was not covered by the policy, and the insurance company is not liable.

[2] The respondent was an employer of labor, and his employees were protected by the insurance obtained by him. The

employment was entirely casual in its nature, and, within the Rheinwald Case, 223 N. Y. 54, 120 N. E. must be considered as a special contractor, and not an employee of the defendant. He worked for the defendant by the job and by the hour, in casual employments, and was not a regular employee.

[3,4] The work being performed at the time was in the parlor, which was being fitted for a residence for the family. Apparently the house would be sold if a satisfactory price was given for it. That, perhaps, is true of most residences; but the work done was not with reference to fitting the house for sale, but with reference to making it attractive and useful for the family as a residence, and the putting of the little plaster on the rough spot in the ceiling was not being done in preparing the premises for sale, but was a mere incident to the kalsomining work which usually is done upon ordinary residential property for the satisfaction of the occupant. The house belonged to the wife of the appellant, the alleged employer; the mason work, the carpenter work, the painting, and all the work in overhauling and repairing it, had been done by independent contractors, except the little job of kalsomining, which was too small and indefinite to be done in that way. It cannot be said that the appellant, with reference to this house, was engaged in "construction, repair, and demolition of buildings," or in any other employment declared hazardous by the Workmen's Compensation Law. The fact that the kalsomnier found it necessary to smooth the ceiling and fill a little hole with plaster, in order to properly do his work, did not bring the employer within the hazardous business of plastering for profit. The work did not differ from the ordinary work done periodically by all householders of kalsomining certain rooms in the house. The evidence is undisputed. It was error of law to say that the alleged employer was carrying on a hazardous employment at this time and place for profit. Matter of Schmidt v. Berger, 221 N. Y. 27, 116 N. E. 382; Geller v. Republic Novelty Works, 160 App. Div. 763, 168 N. Y. Supp. 263; Solomon v. Bemis, 181 App. Div. 672, 167 N. Y. Supp. 676; Matter of Kammer v. Hawk, 221 N. Y. 387, 117 N. E. 576.

The award should be reversed, and the claim dismissed. All concur, except Cochrane, J., who dissents.

SUPREME COURT OF NEW YORK.
APPELLATE DIVISION, THIRD DEPARTMENT.

TSANGOURNOS ET AL.

V.

SMITH ET AL.*

IN RE FIDELITY & CASUALTY CO. OF NEW YORK.

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION -RELATION OF PARTIES-EMPLOYEE OF INDEPENDENT CONTRACTOR.

Award cannot be made against the principal contractor for death of a laborer hired by one to whom the principal contractor has subcontracted part of his wood-cutting contract.

(For other cases, see Master and Servant, Dec. Dig. § 367.)

2. MASTER AND SERVANT-WORKMEN'S

COMPENSATION -PROCEEDINGS-EVIDENCE-RELATION OF PARTIES.

In proceedings to recover compensation for death of employee, the jurisdictional fact of a contract of employment must be shown by evidence which would be required to establish any other contractual relation. (For other cases, see Master and Servant, Dec. Dig. § 405 [2].) John M. Kellogg, P. J., and Lyon, J., dissenting.

Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Law (Consol. Laws, c. 67) by Eskaterine Tsangournos and others for compensation for the death of James Stagurnos, opposed by John J. Smith, employer, and the Fidelity & Casualty Company of New York, insurance carrier. From an award by the State Industrial Commission in favor of claimants, employer and insurer appeal. Reversed, and claim dismissed.

Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ.

Nadal, Jones & Mowton, of New York City (Edward P. Mowton, of New York City, of counsel), for appellants.

Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City, Counsel to Commission (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondents.

PER CURIAM. John J. Smith made a contract with the Tunesassa Lumber Company to cut certain standing timber into cords and to load the same upon the cars at or near Tunesassa, Cattaraugus county. The lumber company agreed to pay Smith $1.35 per cord for this wood, and Smith subcontracted this job to several other men, who in turn hired laborers. Among these subcontractors was one Peter Raptes, who was to be paid at the * Decision rendered, July 1, 1918. 171 N. Y. Supp. 256.

rate of $1.20 per cord for the portion of the wood cut under his direction, and was to have a camp furnished by Smith for his workman. Raptes hired James Stagurnos as one of his gang, and while the latter was at work he was struck and killed by a falling tree, and the State Industrial Commission has made an award to his dependents, not against Raptes, but against Smith and his insurance carrier. The latter appeal to this court from the award made.

[1] An examination of the evidence fails to disclose any facts upon which this award against Smith can rest, because there is an entire failure of competent evidence to show that Smith was the employer of the deceased. All of the competent evidence in the case tends to show that Raptes was an independent contractor, and that the decedent was his employee; but the State Industrial Commission appears to have concluded that Raptes was insolvent and without insurance protection, and reached the conclusion that Smith, who had insurance upon his employees engaged in hauling the wood, was the employer.

[2] This court, in Kackel v. Serviss, 180 App. Div. 54, 167 N. Y. Supp. 348, laid down the rule, which must prevail until overruled, that the jurisdictional fact of a contract of employment must be established by due process of law, by evidence which would be required to establish any other contractual relation, and that in the absence of such evidence no foundation was laid for the operation of the Workmen's Compensation Law. In that case we said:

"The question here is, not whether there is evidence to show that Davis was an independent contractor, but whether Scott Serviss entered into a contract for the employment of Norman J. Wesley, and there is absolutely no competent evidence of any such contract."

That is the situation in the case at bar; there is no evidence whatever that Smith even entered into a contract for the employment of Stagurnos, and without this there is nothing for the Workmen's Compensation Law to operate upon, and the determination of the State Industrial Commission, not having support in the evidence, is without effect.

The award appealed from should be reversed.

Award reversed and claim dismissed. All concur, except John M. Kellogg, P. J., and Lyon, J., dissenting.

SUPREME COURT OF NEW YORK.
APPELLATE DIVISION, FOURTH DEPARTMENT.

BROCKETT

V.

MIETZ.*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT-WORK INCLUDED.

While farm laborer, engaged in getting out logs, was in a hazardous occupation, within Workmen's Compensation Act, § 3, subd. 4, he was by such section expressly excluded from the act as a farm laborer. (For other cases, see Master and Servant, Dec. Dig. § 363.)

2. MASTER AND SERVANT-WORKMEN'S ACT "FARM LABOR."

COMPENSATION

Mere fact that farm hand was engaged in logging in the winter did not take his work out of the term "farm labor," as used in Compensation Act, § 3, subd. 4.

(For other cases, see Master and Servant, Dec. Dig. § 363.)

Hubbs, J., dissenting.

Appeal from Trial Term, Oswego County.

Action by Benjamin Brockett against Fred Mietz. Judgment for plaintiff, with order denying motion for new trial, and defendant appeals. Reversed, and new trial ordered.

Argued before Kruse, P. J., and Foote, Lambert, De Angeles, and Hubbs, JJ.

Frank Hopkins, of Syracuse, for appellant.

Davies & Wilkinson, of Camden (Albert T. Wilkinson, of Utica, of counsel), for respondent. .

PER CURIAM. The plaintiff has recovered a verdict for personal injuries received while at work for the defendant. A load of logs was being hauled to a mill. The plaintiff was the teamster. The defendant was present when the logs were loaded. He thought it was unnecessary to bind the load, but a failure to do so resulted in the load tipping over, or in some way becoming disarranged, injuring the plaintiff. The defendant is a farmer, and the logs were out on his farm, and the plaintiff may fairly be classed as a farm hand.

[1,2] The question is whether the plaintiff's employment is within the Workmen's Compensation Act (Consol. Laws, c. 67). The trial judge held it was, and, if he is right, it was proper to instruct the jury, as he did, that, if the defendant was negligent, neither the plaintiff's contributory negligence nor the assumption\ * Decision rendered, July 2, 1918. 171 N. Y. Supp. 412.