Appeal from State Industrial Commission. Proceeding by Walter Bennett Colon for compensation for personal injuries under the Workmen's Compensation Law, opposed by the American Linoleum Manufacturing Company, the employer, and the London Guarantee & Accident Company, the insurance carrier. Compensation was awarded by the State Industrial Commission, and the employer and insurance carrier appeal. Award reversed, and matter remitted to the Commission. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. William Butler, of New York City, for appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent. COCHRANE, J. [1-3] The commission has found that due notice of injury was given to the employer. This means such a notice as is required by section 18 of the Workmen's Compensation Law (Consol. Laws, c. 67), and that it was given in the manner and to the appropriate person specified in that section. The only written notice was of the most informal nature, and was not intended as a compliance with the statute. It was directed and delivered to an assistant foreman, and accompanied a request that the wages of the claimant be paid to the messenger making the delivery. It consisted merely of a statement in a familiar style to a friend as to the injury which the writer received It naturally did not contain all the details required by the statute. The assistant foreman, to whom it was personally delivered, was not a person to whom the statutory notice might be s given. Due notice of the injury, therefore, was not given to the employer. Matter of Claim of Dorb v. Frederick Stearns & Co., 180 App. Div. 138, 167 N. Y. Supp. 415. The finding of the commission is against the undisputed evidence. If the failure to give the statutory notice has not resulted in prejudice to the appellants, the commission should make the appropriate findings. Award reversed, and matter remitted to the commission. All concur. SUPREME COURT OF NEW YORK. IN RE HASSEN. APPEAL OF UNITED STATES CASUALTY CO.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION— "HAZARDOUS EMPLOYMENT.” Under Workmen's Compensation Law, § 2, effective at the time of the accident, November 25, 1916, coal yards were not classified among the "hazardous employments." (For other cases, see Master and Servant, Dec. Dig. § 361.) * Decision rendered, November 13, 1918. 172 N. Y. Supp. 430. 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION"HAZARDOUS EMPLOYMENT"-"OPERATING A WAGON." A laborer, injured by coal falling on him while he was engaged in unloading coal in a railroad car within the yard of his employer, was not "operating a wagon," within Workmen's Compensation Law, § 2, group 41, as to "hazardous employment," where his duties confined him to the coal yard and he did not drive or deliver coal. (For other cases, see Master and Servant, Dec. Dig. § 361.) 3. MASTER AND SERVANT-COMPENSATION AGREEMENT— AUTHORITY TO APPROVE. Where a claim was not within Workmen's Compensation Law, commission had no power or authority to approve compensation agreement entered into by employer and employee, pursuant to section 20, or to enforce its execution, since no act or acquiescence could confer jurisdiction of the subject-matter. (For other cases, see Master and Servant, Dec. Dig. § 397.) 4. MASTER AND SERVANT-COMPENSATION AGREEMENTPARTIES. If claim was within jurisdiction of commission, insurance carrier did not need to be a party to compensation agreement made pursuant to Workmen's Compensation Law, § 20. (For other cases, see Master and Servant, Dec. Dig. § 400.) Appeal from State Industrial Commission. Proceeding for compensation under the Workmen's Compensation Law by George Hassen, employee. The employer and employee entered into an agreement for payment of compensation, which was affirmed by the State Industrial Commission, and thereby became an award. Application to vacate award denied, and the United States Casualty Company, insurance carrier, appeals. Reversed, award vacated, and claim dismissed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. William H. Hotchkiss, of New York City, for appellant. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent. COCHRANE, J. Claimant was a laborer employed in a coal yard. He was injured by some coal falling on him while he was unloading it into a wagon from a railroad car standing in the yard of the employer. The employer and employee entered into an agreement under section 20 of the Workmen's Compensation Law (Consol. Laws, c. 67) for the payment of compensation, which agreement was in the form provided by said section and was subsequently approved by the commission. By virtue of the statute (section 20) such approval became an "award." Payments were made under this award, and subsequently the insurance carrier made an application to the commission to vacate it, on the ground that the claim was not within the statute and that the commission was therefore without jurisdiction. This application was denied by the commission, and the insurance carrier appeals to this court. [1, 2] The accident occurred November 25, 1916. At that time coal yards were not classified among the hazardous employments under section 2 of the Workmen's Compensation Law, and the employer was not engaged in conducting any hazardous employment under the act. It is suggested that, because the claimant was loading coal into a wagon, he was engaged in the operation of the wagon, and that hence his claim falls within group 41 of section 2 of the act. It does not clearly appear what caused the coal to fall on the claimant, but there is no suggestion that any movement of the wagon or defect therein occasioned or contributed to the accident. Claimant was not a teamster, nor in any way engaged in the operation of the vehicle. His duties confined him to the yard. He describes himself as a laborer, and expressly disclaims that he was a driver, or that he delivered coal. The case is distinguishable from Matter of Dale v. Saunders Brothers, 218 N. Y, 59, 112 N. E. 571, Ann. Cas. 1918B, 703, where the claimant was a teamster operating a wagon, and the work of loading the wagon was incidental to his duties in the operation thereof. Here the claimant was not engaged in the business of operating a vehicle, as in the Dale Case, and his work in loading the wagon was not incidental to such operation, but was his principal and in fact his only work at the time of the accident. The case is not distinguishable in this particular from Matter of Roberto v. John F. Schmadeke, Inc., 180 App. Div. 143, 167 N. Y. Supp. 397, where the claimant was injured while loading coal into an automobile truck for delivery to customers. The claim was disallowed in that case, although this particular point was not there raised. As well might it be urged that, because the claimant was unloading coal from the railroad car into a wagon, he was engaged in the operation of a railway, and so within group 1 of section 2. [3, 4] The commission was of the opinion that the claimant was not within the act, but thought that by their agreement the parties had placed it beyond their power to question the jurisdiction of the commission. The insurance carrier, the only appellant herein, was not a party to that agreement. It did not need to be a party, if the claim was within the jurisdiction of the commission. But no act or acquiescence on the part of any one can confer jurisdiction of the subject-matter of a controversy on a court or body exercising the same. This principle is firmly established, and, if there ever was any doubt about it, such doubt was removed by the recent case of Matter of Doey v. Clarence P. Howland Co., Inc.. 224 N. Y. 30, 120 N. E. 53. The following extract from the opinion in that case finds special pertinency here: "The fact that the determination of the commission had been acquiesced in to the extent that certain payments had been made thereunder, and an appeal had not been taken therefrom, could not prevent either of such parties raising the question at any time they saw fit. This follows from the fact that the determination was a nullity. It bound no one. was a void determination." It It follows that the commission had no power or authority to approve the agreement or to enforce its execution. The decision should be reversed, the award vacated, and the claim dismissed. All concur. SUPREME COURT OF NEW YORK. APPELLATE DIVISION, THIRD Department. URBAN V. TOPPING BROS. et al.* MASTER AND SERVANT - WORKMEN'S COMPENSATION— "OUT OF AND IN THE COURSE OF THE EMPLOYMENT." Where employee, five minutes after quitting time, after washing, put on his coat and hat, and then turned back to look about the working room for his companions, and in doing so put h, head into an elevator shaft and was killed by descending elevator, the accident did not arise "out of and in the course of the employment," within Workmen's Compensation Law. (For other cases, see Master and Servant, Dec. Dig. § 375[2].) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) John M. Kellogg, P. J., dissenting. Appeal from State Industrial Commission. Proceeding under the Workmen s Compensation Law (Consol. Laws, c. 67) by Paul Urban, administrator, for compensation for the death of Paul Urban, Jr., deceased employee, opposed by Topping Bros., employers, and the Allied Mutuals Liability Insurance Company, insurance carrier. From an award of the State Industrial Commission, the employers and insurance carrier appeal. Award reversed, and claim dismissed. Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ. Arthur Butler Graham, of New York City (Howard J. MacLachlan, of New York City, of counsel), for appellants. Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent State Industrial Commission. LYON, J. The serious question involved upon this appeal is whether the injury arose out of and in the course of the employment. Paul Urban, the deceased, was injured while at work for Topping Bros. Preliminary to the taking of evidence, the deputy commissioner inquired as follows: "Is this case contested? "Mr. Spiegel (plaintiff's attorney): It apparently is. "Mr. Gardiner: On the ground the case does not come rightfully under the Compensation Law. "Mr. Archer: That he wasn't engaged in a hazardous occupation? "Mr. Gardiner: No; the accident was not one that arose out of and in the course of employment." The case is stated by the attorney for the claimant as follows: * Decision rendered, November 13, 1918. 172 N. Y. Supp. 432. "Mr. Spiegel: This concern ceased work at 5:30. The accident occurred at 5:35, five minutes really after quitting time. "Mr. Archer (deputy commissioner): On the premises? "Mr. Spiegel: Yes. A good many employees had left the place, but my man and several others were still on the premises, although they quit actual work. There was an elevator on the premises, and the deceased had stepped up to the elevator in order to call two coemployees, with whom he usually went home. He didn't find them on his floor. In order to call them, he looked into the elevator shaft; this elevator shaft had a door in front of it, which had a square opening about the height of a man's head, and as he put his face in there to call for these friends, at that moment the elevator descended, and he sustained injuries from which he died. The contention is not so much that while he was on the premises the accident occurred, but in the course of his employment. My friend's contention is, possibly, that it did not arise out of and in the course of his actual employment. That is the only bone of contention. I think everything else is conceded. There would be no dispute to anything else. We would like a ruling if this falls within the Compensation Law. "Mr. Archer: What's your statement? "Mr. Gardiner: The man had finished his work for the day, had washed up, had put on his coat and hat and started out, and then returned to call down the elevator shaft to "Mr. Archer: By 'started out' you mean he actually left the premises? "Mr. Gardiner: No; he had gone as far as the door, and came back simply for his personal business, and not in connection with anything relating to his employment. Then the question of dependency is also disputed, after we come out of that. "Mr. Archer: I believe you have agreed absolutely on the statement of fact. * "Mr. Spiegel: I believe so. "Mr. Archer: Let's go ahead and try the question of dependency. * "Mr. Gardiner: The commissioner hasn't decided as yet that he comes under the Compensation Law. "Mr. Archer: No; I have made no decision yet; but I think you have agreed on the question of fact. Case is adjourned." On Monday, April 8, 1918, the hearing was resumed, and the attorney for the insurance carrier said: "Mr. Gardiner: We were to have a decision as to whether or not it was in the course of his employment. Did the commissioner go into that? "Deputy Commissioner Archer: I think it was. However, that will be a part of my study of the case, but I think it was. My mind is still open on that matter. Call your witness." The treasurer of the employers and the plaintiff's father were then examined. Adjournment was then had until April 15th, when the following appears on the record: "Mr. Archer: This is a dependency case, as I understand it, and everything is stipulated except the question of dependency. "Mr. Gardiner: Yes. "Mr. Archer: We attempted to hear this case last week, but became convinced that an interpreter was necessary; hence the adjournment to this date. We have an interpreter now, and will proceed with the case on the question of dependency." The plaintiff's father and mother were examined at length. The meetings of March 28th and April 8th and 15th are the only occasions on which the matter of whether the accident arose out of and in the course of the employment were discussed. Hearings were had on April Vol. III-Comp: 13. |