were no cattle upon the place, nor, during the spring and summer of 1918, was there any plowing, cultivating, planting or harvesting done thereupon, by the employer or any other person. The employer testified that he was not a farmer, that he did not buy the farm to farm it, and that his purpose at all times was to improve the farm to sell it, but never himself to farm it. On the day of the accident the claimant was sent out to prune a few apple trees. It was not the purpose of the employer to harvest the apples, nor did he ever sell them. He desired only to prune the trees for the sake of appearances to make the place look more attractive. It was in the course of the work so ordered to be done that the claimant was injured. It seems very clear to me that the claimant was not a farm laborer. There is no farm labor, and hence no farm laborer, unless farming is in operation, or unless constructive or other work is being done, in anticipation of farming or in aid thereof. In this instance there had been no farming for fifteen years. No farming was being done by the employer and no farming was in anticipation except remotely by a possible purchaser from the employer. I think, therefore, that the claimant was not excepted from the operation of the Compensation Law and that he was entitled to an award.

The award should be affirmed. Award unanimously affirmed.

The City of New York employed a man to take care of the horses of a New York National Guard squadron. Incidentally to this employment, the man plowed the ground of the hay farm upon which the horses were kept. He was fatally injured while driving a horse into a barn upon the farm. The Commission declared that he was not engaged in farm labor and awarded death benefits to his widow. The Appellate Division reversed the award and dismissed the claim, one justice dissenting. opinion is presented above, page 77. It did not pass upon the farm laborer question, but contented itself with declaring that the claimant was not a city employee: Muller v. City of New York, S. D. R., vol. 20, p. 375, Apr. 21, 1919; 189 App. Div. 363, Nov. 12, 1919.

Its

By contrast with the above cases, the Commission denied compensation to an employee whose sole duty was caring for the cattle and producing the milk on a dairy farm, though his employer bottled certified milk. It distinguished the case from the Clark case, saying:

MORSE V. WILLOW BROOK DAIRY, S. D. R., vol. 20, p. 392, Bul., vol. 4, p. 169, Apr. 30, 1919, in part.

Here, however, claimant's regular and continuous work was that in which he was engaged at the time of his injury, namely, farming, and he is expressly excluded from the benefits of the act. If he had been regularly

employed as a milk bottler, and had been sent, because of some emergency, to assist in milking or caring for the cows, or to repair the barn, the Clark case might be used as a precedent for an award. But his regular work was about the barn and put him in the category of farm laborer, the very work in which he was injured.

Notwithstanding the opinion of the Court of Appeals in Uhl v. Hartwood Club, the Appellate Division, Fourth Department, has held that accident to a farm laborer while engaged in logging is not within the compensation law's coverage. Its opinion, and

a dissenting opinion of Justice Hubbs, are as follows:

BROCKETT V. MIETZ, 184 App. Div. 342, July 2, 1918.

PER CURIAM: The plaintiff has recovered a verdict for personal injuries received on December 16, 1916, 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 cut on his farm and the plaintiff may fairly be classed as a farm hand.

The question is whether plaintiff's employment is within the Workmen's Compensation Law. 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 of risk would bar a recovery. (See Workmen's Compensation Law [Consol. Laws, chap. 67; Laws of 1914, chap. 41], § 11, as amd. by Laws of 1916, chap. 622.) While lumbering and logging are classed as hazardous employments by the Workmen's Compensation Law (§ 2, group 14, as amd. by Laws of 1916, chap. 622) and while plaintiff, the employee, would be included within the general language of subdivision 4 of section 3 (as amd. by Laws of 1916, chap. 622) as engaged in a hazardous occupation, still it is expressly provided in subdivision 4 of section 3 of the act that the term "employee" shall not include farm laborers or domestic servants, so that even if a farm laborer is engaged in logging he is specifically excepted from the provisions of the act. We think the jury could find that the logging was farm work. It was in the winter time; defendant and two or three men were getting out logs on his farm, and merely because he was going to sell the lumber did not, we think, take it out of what is generally understood to be farm labor.

The judgment should be reversed, with costs to the appellant to abide the event, and a new trial ordered.

All concurred, except HUBBS, J., who dissented and voted for affirmance in a memorandum.

HUBBS, J. (dissenting): I think the opinion in the case of Uhl v. Hartwood Club (221 N. Y. 588), which was not cited in the briefs or called to the court's attention on the argument, when read in connection with the dissenting opinion in the same case (177 App. Div. 46), clearly establishes the fact that the plaintiff in this action comes within the Workmen's Compen

sation Law. The decision in the Court of Appeals disposes of the argument that the defendant's lumbering was a mere incident to his farm business. (See, also, Zubradt v. Estate of Shepard, 180 App. Div. 20.)

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.

Accident to a farm laborer while filling an icehouse for farm purposes is not within the compensation law's coverage. The Appellate Division, Third Department, has so held with opinion, pertinent part of which is as follows:

MULLEN V. LITTLE, 186 App. Div. 169, Jan. 8, 1919, in part.

COCHRANE, J.: This is an action under the Employers' Liability Act, now a part of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352). Plaintiff was employed as a farm laborer. In the performance of his duties he was injured on December 29, 1917, while filling an ice house with ice for use on the farm. On the testimony of the plaintiff himself his negligence clearly contributed to the accident.

The plaintiff urges that the question of contributory negligence is eliminated for the reason that the case falls within the Workmen's Compensation Law and if so section 11 makes that question unimportant. (Consol. Laws, chap. 67 [Laws of 1914, chap. 411, § 11, as amd. by Laws of 1916, chap. 622.) Ice harvesting is a hazardous employment under that act (§ 2, group, 25, as amd. by Laws of 1916, chap. 622, and Laws of 1917, chap. 705), but such employment was not in this instance "carried on by the employer for pecuniary gain" within the meaning of the statute (§ 3, subd. 5, as amd. by Laws of 1917, chap. 705). The plaintiff was in reality a farm laborer (§ 3, subd. 4, as amd. by Laws of 1917, chap. 705) and the ice was being stored for use on the farm and only as incidental to farm purposes. Hence the case is not within that act.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event. The court disapproves the finding that the plaintiff was not negligent.

All concurred.

Judgment reversed on the law and facts and new trial granted, with costs to the appellant to abide the event. The court disapproves of the finding that the plaintiff was not negligent.

The Workmen's Compensation Law excepts domestic servants from its operation.

Automobiles owned by business men are of two classes, those used for business and those used for recreation or other personal purposes. Sometimes a single chauffeur is employed for operation of both kinds of cars. Sometimes a business car is used for pleasure or a pleasure car for business. If a chauffeur is injured while operating or adjusting a car for his employer's business purposes his case is compensatable; otherwise not. If he is operating or adjusting it for members of his employer's family upon their own personal concerns, his status is similar to that of a family cook or butler. The Appellate Division has so held with opinion in Wincheski v. Morris, text of which is in Bulletin 87, page 195, and without opinion in Kender v. Reineking, S. D. R., vol. 19, p. 485, Bul., vol. 4, p. 143, Feb. 25, 1919; 188 App. Div. 984, June 30, 1919. Acting upon the Appellate Division's opinion, the Commission has rescinded the award in the Wincheski case. October 8, 1917.

The grounds or premises of a corporation engaged in the manufacture of war munitions were laid off into streets and were occupied by a public restaurant, an employees' athletic field, etc., in addition to the working plant proper. A newly employed waitress of the restaurant was summoned within the plant proper to have her picture taken in accordance with the war-time regulations. She was then escorted without the gates. Upon the way to her dormitory the automobile of a third party ran her down in a street open to the general public. Upon appeal for an award for her injuries the employer objected, among other objections, that she was in the status of a domestic servant. The Appellate Division reversed her award and dismissed her claim, evidently upon extra-territorial grounds but without opinion, all concurring: McCaffrey v. Du Pont de Nemours & Co., S. D. R., vol. 20, p. 373, Apr. 4, 1919; App. Div. -, Nov. 21, 1919.

The question of domestic service was not raised in the extraterritorial waitress case of Perlis v. Lederer, below, page 215; waitresses, as well as other employees of hotels having fifty or more rooms, are covered by Workmen's Compensation Law, § 2,

K. FAULT

The subject of fault as a bar to compensation has been presented in Bulletin 81, pages 114-116, and Bulletin 87, pages 196– 208. The following pertinent cases are in continuance of such presentation.

1. NEGLIGENCE

In upholding the Compensation Law's provision of liability without fault, the Supreme Court of the United States has said: NEW YORK CENTRAL R. R. Co. v. WHITE, 243 U. S. 188, Mar. 6, 1917, in part. In excluding the question of fault as a cause of the injury, the Act in effect disregards the proximate cause and looks to one more remote-the primary cause, as it may be deemed and that is, the employment itself. For this, both parties are responsible, since they voluntarily engage in it as co-adventurers, with personal injury to the employee as a probable and foreseen result. In ignoring any possible negligence of the employee producing or contributing to the injury, the lawmaker reasonably may have been influenced by the belief that in modern industry the utmost diligence in the employer's service is in some degree inconsistent with adequate care on the part of the employee for his own safety; that the more intently he devotes himself to the work, the less he can take precautions for his own security. And it is evident that the consequences of a disabling or fatal injury are precisely the same to the parties immediately affected, and to the community, whether the proximate cause be culpable or innocent.

A leather goods factory required its employees to work on the Fourth of July; when quitting time came they found the factory door locked and the watchman gone away with the key; after an hour or two they got out by sliding down a fire hose from a second story window and dropping ten or twelve feet; in so doing their aged foreman broke his leg; upon appeal from an award of compensation to him the employer argued that the employees had chosen an unsafe method when safe methods were available, such as telephoning for some one to come and unlock the door, waiting for the watchman's return or using the fire-escape; the Attorney-General replied that these safer methods did not suggest themselves or were not practicable; the courts affirmed the award without opinion: Schiff v. Scheuer & Sons, S. D. R., vol. 19, p. 428, Jan. 10, 1919; 188 App. Div. 944, May 9, 1919; - N. Y. Rep. — -, Oct. 21, 1919.