ous work. It is not the fact that a man is a stockholder and officer of the corporation that determines; it is the character of his employment. If the claimant had been employed as treasurer of the corporation at a fixed salary as such treasurer, and he was employed for that purpose and such duties as should be incident to such employment, he would not be entitled to compensation if he went out into the factory and undertook other employment, because he would not be employed for such a purpose-would not be within the contemplation of the insurance. But this man was included in the insurance as superintendent or manager of the plant, and while engaged in his regular employment he was within the letter and the spirit of the act. [2] We are of the opinion that under the statute it was competent for the Industrial Commission to estimate the proportionate loss of the use of claimant's hand, and that the award is not to be disturbed on this account. While the commuting of awards and the payment of lump sums is not to be encouraged, and should not be restorted to except in special cases where justice will be promoted upon the shown facts, we think there is no occasion for interference here, as the parties appear to have originally acquiesced in this disposition while questioning the authority to make the award. The award of the State Industrial Commission should be affirmed. All concur, except Lyon and Cochrane, JJ., dissenting. An applicant for work, who, after having passed the night in defendant's boarding cars, had failed to report in the morning, as directed, to ascertain whether he could obtain employment, was injured while going to a car for his midday meal, was not an "employee," within the Workmen's Compensation Act. (For other cases, see Master and Servant, Dec. Dig. § 361.) (For other definitions, see Words and Phrases, First and Second Series, Employee.) 2. MASTER AND SERVANT - WORKMEN'S COMPENSATION EMPLOYEES CONTINUANCE OF EMPLOYMENT. A claimant under the Workmen's Compensation Act, who had worked for defendant in another town and made application for work in the town where injured, and who traveled on a pass issued by defendant and made application at defendant's employment bureau at destination, but was told to report the next morning, did not retain the status of an * Decision rendered, March 5, 1919. 175 N. Y. Supp. 359. employee, so as to recover for injuries incurred before being assigned to work. (For other cases, see Master and Servant, Dec. Dig. § 361.) 3. MASTER AND SERVANT - WORKMEN'S COMPENSATION — COURSE OF EMPLOYMENT. One who was injured while going to defendant's dining car to eat his midday meal was not entitled to compensation as for an injury in the course of his employment, where he had done no work for defendant, but merely applied for employment, although he had eaten supper and breakfast with defendant's permission; such permission being restricted to such meals. (For other cases, see Master and Servant, Dec. Dig. § 371.) Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Act by Aime Brassard (Fred Talbot) for personal injuries, opposed by the Delaware & -Hudson Company, employer. From an award by the Industrial Commission to claimant for the loss of his left arm, the employer appeals. Reversed and claim dismissed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellegg, JJ. Charles D. Newton, Atty. Gen., and Robert W. Bonynge, of New York City, for State Industrial Commission. Lewis E. Carr, of Albany, for appellant. William T. Byrne, of Albany, for respondent. HENRY T. KELLOGG, J. The claimant was injured in the railroad yard of the Delaware & Hudson Company at Colonie, N. Y., at about noon on the 15th day of January, 1918. He was on his way across the tracks in the yard to get a midday meal at a dining car provided for employees. Finding that a train occupied one of the tracks, he started to cross underneath a car, when the train moved and he was struck. Claimant asserts that he was at the time an employee of the Delaware & Hudson Company, and was injured while in the course of his employment. The claimant had been employed by the appellant at its coal chutes at Colonie, N. Y., for 75 hours during the months of April and May, 1917. He was not again employed by the appellant until December, 1917, during which month he worked for 164 hours at its coal chutes at Carbondale, Pa. While at the latter place he informed a Mr. Kutz, who kept a railway boarding house for the appellant, that he desired to get work at Colonie. He obtained from him a railway pass to Colonie, and being paid in full, started for Albany over the railroad of the appellant. Ariving on the night on January 2, 1918, he remained in Albany until the 4th of January, paying his own expenses for board and lodging. While there he made application to an employment bureau for work in the employ of the appellant. At about 4 of the afternoon of January 4th he left for Colonie. He arrived at about 4:30, and there interviewed a clerk of the appellant, whom he asked for work. He was questioned as to his work at Carbondale, and was told that, while no such work was open, there was a call for three men at the roundhouse in the yards at Colonie. He told the clerk that he desired to lodge and board at the railway cars provided by the appellant for employees, at $4.20 a week. The clerk handed him a card marked with a number, and gave cards to two applicants for work who had accompanied claimant. He handed claimant a piece of paper, to use at the boarding car, reading "Give these three men supper and breakfast," and told him to report at the office before 7 in the morning to find out where he was to work and what the work would be. The character of the work to be done was not agreed upon and the compensation to be paid was not mentioned. The claimant got his supper and breakfast at the boarding car, and spent the night on a sleeping car of the appellant which was provided for laborers. He did not return in the morning before 7 to the clerk at the office as instructed, but instead slept until 8:30, and, having had his breakfast, spent the morning on the sleeping car. When the noonday whistle blew, he started across the tracks for the boarding car to get his dinner, and it was then that he was struck and injured. [1,2] The claimant was not an employee of the appellant at the time of the accident. He was not such an employee through the continuance of any contract made at Carbondale. He worked at that place by the day, and was paid by the day at an hourly and overtime rate. It must certainly be that a laborer not at work remains in an employment only by virtue of continuing promises both to hire and to work. If there is no binding promise to work further, there is no binding promise to hire further. Claimant did not promise to work at Carbondale for more than a day at a time. Nor, when he left that place, did he promise to work for appellant at Colonie. Moreover, he was not then promised further work, nor does it appear that any person at Carbondale, to whom he talked, had power to engage him for work at Colonie. His conduct in remaining in Albany two nights and days, and in applying at the employment bureau there for work, clearly shows that he did not consider himself to be at that time an employee of the appellant. Nor did the claimant become an employee through his conversation with the clerk at Colonie. No contract was then arrived at, for neither the work to be done nor the compensation to be paid was agreed upon, nor did the clerk positively state that he would give the claimant work. The conversation was purely tentative and the claimant and the clerk were to arrange the matter on the following morning. That is why the claimant was told to come to the office before 7 o'clock. That is why the clerk gave claimant a ticket for supper and breakfast only. Even if an offer of work was made, that offer was conditional upon the return of the claimant, and when claimant failed to return the offer terminated. It is clear that the claimant, though an applicant for work was never, in fact, employed. [3] Even if claimant was an employee of the appellant, he was not acting in the course of his employment when injured. It is true that an employee is within the protection of the Workmen's Compensation Law (Consol. Laws c.67), not only when actually at work, but also while upon the premises of his employer he is going to or from work, or to or from a meal, or while at a meal which is had upon the premises during a temporary interruption of work. This claimant was not going to or from his work at the time of the injury, nor was he going to a meal during the interruption of his work, for he had as yet not worked at all. Fnally, he was not going to a meal upon the premises, which he was permitted to take there, for his card to the boarding house was for supper and breakfast only, and both these meals he had already eaten. He had no right to a noonday meal at the boarding house. Therefore the claimant, even though an employee, was not in the course of his employment when injured. The award should be reversed, and the claim dismissed. All concur, except John M. Kellogg, P. J., who dissents. SUPREME COURT OF NEW YORK. FREY MCLOUGHLIN BROS., INC., ET AL.* 2. MASTER AND SERVANT-WORKMEN'S COMPENSATIONDEPENDENTS—EVIDENCE. In a proceeding under the Workmen's Compensation Act for compensation for the death of claimant's minor daughter, evidence held not to show that the mother, who was the claimant, was dependent on the earnings of the daughter. (For other cases, see Master and Servant, Dec. Dig. § 405[5].) Appeal from State Industrial Commission. Proceeding under the Workmen's Compensation Act by Mrs. Barbara Frey for compensation for the death of Mary Frey, opposed by McLoughlin Bros., Incorporated, employer, and the Employers' Liability Assurance Company, insurance carrier. From an award of the State Industrial Commission in favor of claimant, the employer and insurance carrier appeal. Reversed, and claim dismissed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Bertrand L. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for appellants. Charles D. Newton, Atty. Gen., and Robert W. Bonynge, of New York City (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent State Industrial Commission. WOODWARD, J. Mary Frey was a girl 19 years of age, living at home with her parents, and employed by McLoughlin Bros., Incorporated, in a hazardous employment. On the 10th of August, 1917, this girl drove a tack through one of her fingers, in the course of her employment, and one week later she died, and the evidence supports, we believe, the finding that she died of blood poisoning. A claim was made on behalf of the father and mother as dependents. The claim of the father was rejected, on the ground that there was no dependency shown, but, strangely enough, the commission, by a divided vote, found that the mother, the wife of the independent father, living in his home, was a dependent. [1,2] Of course the earnings of this minor child belonged to the father under the ordinary rules of law. They amounted to about $8 per week. She had been working about two years, and the mother says that the reason she was at work was because she was “a big girl, and there was no reason why she should sit around and do nothing, and her father do all the work; she was a strong girl." We find no evidence in the case that the mother depended on the earnings of this girl. Her husband was at the time of the accident (and this is the only time that the statute considers-Birmingham v. Westinghouse Electric & Mfg. Co., 180 App. Div. 48, 50, 167 N. Y. Supp. 520, and authority there cited) * Decision rendered, May 7, 1919. 175 N. Y. Supp. 873. drawing a salary of $20 per week, and there is no evidence from which it can be made to appear that this did not afford the support of these two people. There is testimony that the daughter turned all of her wages, $8 per week, over to her mother, and that this was necessary to the support of the family; but this must be taken in connection with the fact that the daughter constituted one-third of the family and presumptively it required as much for her support as for any any one of them, and this was less than one-third of the income of the family from wages. Moreover, it appears that the father owned a four-family frame house of the assessed valuation of $4,500, on which there was a mortgage of $2,500, and that they had $1,000 in bank. The house was rented, and the testimony shows that the income was sufficient to take care of the interest and taxes, and there is evidence that the family at the time of the death of the daughter was able to save $2 per week, and that after the death of the daughter they were unable to save anything. It does not, however, show that the mother was dependent upon the income of the daughter. "The statute plainly intended that the award to each person should be for the support of such person" (Matter of Walz v. Holbrook, Cabot & Rollins Corp., 170 App. Div. 6, 9, 155 N. Y. Supp. 703; Birmingham v. Westinghouse Electric & Mfg. Co., 180 App. Div. 48, 52, 167 N. Y. Supp. 520), and not for the purpose of paying the mort gage upon the property owned by the claimant's husband. The evidence here shows without dispute that the mother is getting the same support now that she had while the daugther was alive; she merely says that since Mary's death she could save nothing. But her husband owes her the legal duty of supporting her; he appears to be abundantly able to do this, and no lack of disposition to discharge the duty is shown. The family goes on living as usual; no change in housing, no change in food. fuel, clothing, etc., and because there is no surplus to pay upon the debts of the husband we may not conclude that the mother was dependent upon the $8 a week provided by the daughter. Assuming that it required all of the earnings of the father and daughter to keep up the family expenses, the danghter was contributing less than a third of this sum, and her death, from a financial standpoint, aside from the funeral expenses in excess of $100, would result in a saving to the family. And the question here is not the family, for an award has been denied to the father, but the depedency of the mother, and we find no evidence in the record from which the inference can be drawn that the mother has any less to-day than she had when her daughter was living, or that she was in any sense dependent upon her wages at the time of the accident and death. The award should be reversed, and the claim dismissed. All concur. SUPREME COURT OF NEW YORK. KINSELLA NEW YORK CENT. R. CO. COMMERRCE-WORKMEN'S COMPENSATION ENGAGED IN "INTERSTATE COMMERCE." EMPLOYEES An employee of a railroad company, who was fatally burned while cleaning a car homeward bound on an interstate trip, while standing in *Decision rendered, March 14, 1919. 175 N. Y. Supp. 363, |