that the fellow driver was not going to any meal or on any business of his own. The Appellate Division affirmed the award unanimously and without opinion: Terrell v. Acco Taxi Co., Death Case No. 375745, Mar. 3, 1919; App. Div. Nov. 12,

1919.

31. FIGHTING FIRE IN PLANT

An employee responded to a midnight alarm of fire on his employer's premises, about twenty minutes after he had been relieved from his regular duties, and was killed by a falling wall. He was an associate member of the village fire department. The village paid $1,500 in firemen's benefits, presumably to his estate. His employer paid $1,000 to his family. The Commission found his mother dependent and awarded death benefits to her. The employer appealed from the award, declaring that deceased had met his death as a fireman, not as an employee. The court took this view of the case and also emphasized the absence of a special request by the employer to the employee that he perform the outof-hours fire fighting service. One justice dissenting, it reserved the award and dismissed the claim with opinion as follows:

COLE V. FLEISCHMANN MFG. Co., 189 App. Div. 306, Nov. 12, 1919. COCHRANE, J.: Walter Cole, the deceased employee, ceased working at twenty minutes after eleven o'clock in the evening. Twenty minutes thereafter a fire broke out in one of the buildings of the employer's plant and burned all night. About four o'clock in the morning Cole was assisting other firemen to extinguish the fire when the walls of the building collapsed and he was buried thereunder and killed. Compensation has been awarded to his mother and is resisted on the ground that the accident did not arise out of or in the course of the employment.

The Commission has made inconsistent findings. It has found that Cole did not leave the premises of the employer after he ceased his usual employment on the night in question. It also adopts as part of its findings the facts stated in the opinion of the Commission. In such opinion it is stated that it cannot be definitely ascertained whether or not the fire was discovered before the deceased left the premises and that it must be assumed that he was either on the premises or not far therefrom when the fire was discovered. The evidence, however, is absolutely silent as to the whereabouts of Cole intermediate the time when he stopped work and the time when he was killed, more than four hours thereafter. The evidence shows conclusively that it did not require more than five minutes for him to leave the premises after he stopped working. The only permissible inference is that he had left the premises before the fire occurred and no inference can be drawn as to when he returned before four o'clock in the following morning.

Cole was an associate member of a volunteer fire department in the village of Peekskill where the fire occurred. When a vacancy occurred in the active membership of the department it was filled by one of the associate members. Associate membership conferred certain privileges but did not involve the obligation of responding to alarms of fire. Such members, however, frequently did render voluntary assistance in fighting fires and their usefulness in that particular enhanced the probabilities of their appointment to active membership when vacancies occurred in the latter body. It appears that after the death of Cole the village paid the sum of $1,500 under section 205 of the General Municipal Law (as amd. by Laws of 1914, chap. 400), which provides for such payment in the case of an active member of a volunteer fire company who "dies from injuries incurred while in the performance of his duties as such fireman." As stated, Cole was not an "active" member of the company but the village recognized the fact that he was performing the duties of an active member and acknowledged its liability accordingly.

Reliance is placed by the respondent on the case of Matter of Gricb v. Hammerle (222 N. Y. 382). In that case emphasis is given to the fact that the employer specially requested the particular service which the employee was rendering out of his regular working hours at the time when he was injured and which was of the same nature he was accustomed to perform for his employer. Here there was no request. The employer was not at liberty to make such a request nor to accept or reject the services of any person in extinguishing the fire when Cole met his death. Operations at the fire were under the control of the chief engineer of the village fire department. He alone had the power to give orders. He was not subject to interference even by the owner of the property. He so testified at the hearing before the Commission. Independently of his testimony such is the law. (Laws of 1859, chap. 62, §§ 23, 24; Laws of 1883, chap. 117, tit. 6, §§ 2, 4; Village Law, & 208; Penal Law, § 1901.) The case cited, therefore, has no application.

It seems to me that the accident to Cole did not arise out of or in the course of his employment nor was it incidental thereto. The accident occurred while he was rendering services as a fireman and while he was subject to the control and direction of the chief engineer of the fire department and not of his employer. The fact that the fire occurred on the premises of his employer was a coincidence. If it had occurred elsewhere the legal aspect of the case would not be different. Cole may have responded more willingly because the fire was on his employer's premises. It is impossible to determine whether he did or not. It is immaterial. No duty required him to act. No request to do so came from his employer. His allegiance and duty were to the organization with which he was acting, and to the orders, direction and control of its chief engineer alone he was subject.

We do not hold that if the deceased pursuant to a request of his employer had acted as a fireman with the acquiescence of the chief engineer of the fire department and subject to his orders liability would not exist on the part of the appellants. But such request by the employer was not expressed and the circumstances clearly are not such as to justify an inference of an implied request even assuming that an implied request would create liability against the appellants.

It appears furthermore that the employer paid the family of the deceased $1,000 after the accident, which was not considered in making the award. But independently of that fact for the reasons heretofore stated the claim should be dismissed.

All concurred, except JOHN M. KELLOGG, P. J., dissenting. reversed and claim dismissed.

32. DELIVERING A TELEPHONE MESSAGE

Award

A coke dealer telephoned to his teamster who was unloading coke at a foundry. An employee in the foundry office went out to deliver the message and in doing so slipped on a steel plate and broke his leg. Commissioner Lyon said that liberal interpretation of the law permitted the employee to perform such an act of courtesy without taking himself out of his employment. The Commission awarded compensation: Job v. Hislop & Marshall Estate, S. D. R., vol. 21, p. 182, Sept. 9, 1919.

33. BUYING WORK SHOES

An employer in the trucking business set out from his premises with one of his teams to procure a load of coal for his home. As he set out he ordered a teamster in his employ to appear at the coal yard for the purpose of loading the coal but gave him permission and time enroute to buy heavy shoes needed in his work. An automobile ran the teamster down and fatally injured him while he was on the way to get the shoes. The Commission awarded death benefits to his widow, one Commissioner dissenting: Gisner v. Dunlop, 21 S. D. R. 352, June 12, 1919.

G. PECUNIARY GAIN

Full history of the pecuniary gain provision of Workmen's Compensation Law, § 3, subd. 5, till June, 1918, has been given in Bulletin 87, pages 166-186. The following instances illustrate the subject further.

The Commission, upon opinion of Commissioner Lyon, awarded compensation to a workman whose eye had been destroyed by a lime burn while he was repairing the plaster on a ceiling. The carrier contested the award on three grounds, one of which was that the employer had not been carrying on the work for pecuniary gain. The facts are sufficiently set forth in Commissioner Lyon's refutation of the pecuniary gain argument, as follows:

HUNGERFORD V. BONN, S. D. R., vol. 14, p. 720, Bul., vol. 3, p. 121, Jan. 2, 1918, in part.

I am also of the opinion that Mr. Bonn was making the alterations in the house in question for pecuniary gain, within the meaning of the Workmen's Compensation Law. In fact the title to the house was not in the employer's name at all, but I am not disposed to put great weight upon this fact, because apparently the title was taken in the name of Mrs. Bonn as a matter of business convenience. Nevertheless it is true that the ownership of the property was in a different individual than the person who assumed the position of employer. The real point of the case, however, in my mind, lies in the fact that it was a part of the regular business of the employer to buy old and partially dismantled houses, remodel and reconstruct them for the purpose of selling, and this was precisely the thing which he had done with the house in question, turning it from a one-family house into a threefamily house and, as he said, he was ready to sell it at any time if a favorable opportunity presented itself. The fact that he was contemplating using one of the apartments for himself and for the time being had some of his goods in the room where the accident occurred, did not differentiate this house from other houses of a similar character which the employer was in the habit of buying and selling. I think the purchase, remodeling and sale of houses was a part of the regular business of the employer.

The Appellate Division, however, took a different view of the question as the following quotation from its opinion shows:

HUNGERFORD V. BONN, 183 App. Div. 818, July 1, 1918, in part. 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 of 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 kalsominer 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; Geller v. Republic Novelty Works, 180 App. Div. 762; Solomon v. Bonis, 181 id. 672; Matter of Kammer v. Hawk, 221 N. Y. 378.)

The award should be reversed and the claim dismissed. All concurred, except Cochrane, J., dissenting. Award reversed and claim dismissed.

But accidental injury while doing hazardous work regularly and constantly for an employer whose business is non-hazardous is compensatable. The Appellate Division has so held in unanimously affirming an award to a carpenter in the employ of a department store, with opinion as follows:

ALTERMAN V. Namm & Son, 190 App. Div. 76, Dec. 29, 1919. COCHRANE, J.: The employer conducted a large department store which at the time of the accident on June 17, 1917, was a non-hazardous occupation not covered by the Workmen's Compensation Law. In its store on the seventh floor it had a carpenter shop in connection with its business and incidental thereto. It had in its regular and permanent employment five or six carpenters to do work in and about the store. The claimant was thus employed as a carpenter in moving some partitions and on leaving his work for the day he was injured in an elevator in the building. His employment in the store had been of short duration but that feature of the case is not important. It is claimed that the employer was not conducting a hazardous business for pecuniary gain.

In Matter of Schmidt v. Berger (221 N. Y. 26), the superintendent of an apartment house was injured while planing the top of a door where it bound. It was held that the words "structural carpentry" in Group 42 of section 2 did not include an isolated act of planing wood. Much the same question was involved in Matter of Solomon v. Bonis (181 App. Div. 672; affd., 223 N. Y.