The Appellate Division affirmed the award with opinion as follows, one justice dissenting: WOODRUFF V. HOWES CONSTRUCTION Co., 189 App. Div. 395, Nov. 12, 1919. LYON, J.: The question involved in this appeal is whether the injury to the claimant was the result of an accident. He was a carpenter, and had been employed for three or four weeks preceding December 23, 1918, at the United States Government Hospital at Otisville, N. Y. For two weeks he had been employed in hanging doors and sash, pressing the handle of a screw driver, bruising, as he believes, the palm of his hand which resulted in a felon. At times he fastened a pin in the jamb of the screw driver and hit the screw driver with his hand. He said the pain was several days coming on. On Saturday, December twenty-first, he felt a pain between the first and second fingers very much as though he had run a splinter in the palm of his hand. On Sunday the pain was severe. On Monday he worked but with pain. On Tuesday, December twenty-fourth, he went to a doctor who lanced the swelling from which pus came. There was no evidence of any undue strain, nor of any puncture. Under this undisputed state of facts the appellants claim that the claimant was not entitled to an award; that an injury, to be the result of an accident, must be traceable to a definite time, place and cause. 66 Accident is defined in United States Mutual Accident Association v. Barry (131 U. S. 100, 121), quoted by defendants' counsel, as meaning "happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected; that, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means." The appellant has cited several decisions of the courts of England holding that the injury was not the result of an accident where the occurrence was not accompanied by any slip, wrench or strain, or where the person injured was unable to give any specific time of the happening of the accident. Contrary to the holding of these cases is that of the House of Lords in Clover, Clayton & Co. v. Hughes (3 B. W. C. C. 275), where a workman suffering from an advanced aneurism of the aorta was doing his work in the ordinary way by tightening a nut with a spanner. This ordinary strain caused a rupture of the aneurism resulting in death. Held, that the workman's death resulted from a personal injury by accident. But these cases are subject to the ruling of the House of Lords in the case of Fenton v. Thorley, in which the claimant ruptured himself at work: "There was no evidence of any slip or wrench or sudden jerk." Held, that it was an accidental injury. The House of Lords defined the meaning of " personal injury by accident" in the English Workmen's Compensation Act, 1897 (60 & 61 Vict. chap. 37, § 1) as an unlooked-for mishap or an untoward event which is not expected or designed. (Fenton v. Thorley & Co., Ltd., L. R. [1903] A. C. 443; 5 W. C. C. 1.) The felon was the unexpected result of the bruising of claimant's hand. In Swart v. Town of Shelby (186 App. Div. 927) a teamster dumped twenty or thirty loads of dirt each day, striking the lever with his hand. It pained him, and he was obliged to desist from work. On examination the doctor found the palm of his hand calloused, and a blood blister, and evidences of infection. The infection spread to his arm, necessitating amputation and causing his death. An award of compensation was affirmed by this court. The award should be affirmed. All concurred, except H. T. Kellogg, J., dissenting. Award affirmed. Employment is "a relation of power and dependence" based upon mutual promises. In its definitions of terms the Workmen's Compensation Law does not make working for hire a test of employment as the Labor Law does. The Court of Appeals has observations on the criteria of employment in its opinions. holding both general and special employers liable for compensation, notably in DeNoyer v. Cavanaugh, 221 N. Y. 273, text of which is in Bulletin 95, pages 211, 212. It has declared that employment includes services rendered out of hours and gratuitously: Grieb v. Hammerle, 222 N. Y. 382; Bulletin 87, pages 149-151. An eleven year old school boy was in the habit of riding a milk route with a milkman, especially on his Saturday school holiday. Together with other boys he ran with the milk bottles from the wagon to the customers' doors. The milkman usually gave him a dime Saturday night. One Saturday the milkman, having sprained his back lifting a can of ashes, requested the boy to assist him in peddling milk. Three other boys were along. The boy slipped and fell under a wheel of the wagon which crushed his ankle. His leg was amputated below the knee. The Commission, after hearing conflicting testimony of the milkman and the boys as to the employment and pay, awarded compensation totalling $1,576.45, calculation being made upon minor's expectation of increase. The Appellate Division affirmed the award. unanimously and without opinion: Feck v. Schomske, Claim No. 18571, Oct. 15, 1917; 184 App. Div. 922, May 21, 1918. A laborer seeking employment with a railroad had been told to report at its office for assignment to a job and had been getting meals and lodging upon its boarding and sleeping cars meanwhile. A train under which he crawled en route from the sleeping to the boarding car crushed his arm. The injury necessitated amputation. The Commission awarded him compensation, Commissioner Lyon dissenting (S. D. R., vol. 18, p. 573). Appellate Division reversed the award and dismissed the claim upon the ground that no promises of employment existed between the parties. Its opinion is as follows: The Brassard V. DELAWARE & HUDSON Co., 186 App. Div. 647, Mar. 5, 1919. H. T. KELLOGG, J.: The claimant was injured in the railroad yard of the Delaware and Hudson Company at Colonie, N. Y., at about noon on the 5th day of January, 1918. He was on his way across the tracks in the yard to get a mid-day 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 and 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, Penn. 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. Arriving on the night of January 2, 1918, he remained in Albany until the fourth 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 four of the afternoon of January fourth he left for Colonie. He arrived at about four-thirty, 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 four dollars and twenty cents 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 seven 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 seven to the clerk at the office as instructed, but instead slept until eightthirty, and, having had his breakfast, spent the morning on the sleeping car. When the noon-day 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. 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 over-time 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 the 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 seven 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. 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 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. Finally, 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 noon-day 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 concurred, except JOHN M. KELLOGG, P. J., dissenting. Award reversed and claim dismissed. A station agent, not being able to close the door of a freight car, called upon a bystander to help him. The bystander, responding, caught and injured his finger. Tetanus developed, causing his death. The Commission held that the bystander was a temporary employee and awarded death benefits to his widow against the station agent's employer (S. D. R., vol 20, p. 365, Feb. 24, 1919). Upon Appeal, the Appellate Division affirmed the award, Justice H. T. Kellogg dissenting with memorandum, as follows: App. Div. FARRINGTON v. U. S. R. R. ADMINISTRATION, |