cases. While the deceased not infrequently did work of this kind it is to be noted that he did not make a special business of it, did not advertise himself as carrying on a separate business and only seems to have made the bargain in the present case on an estimated wage basis. I, therefore, advise that the award be confirmed.

Decision in the Cummings case was with majority opinion and dissenting opinion as follows:

CUMMINGS V. UNDERWOOD SILK FABRIC CO., 184 App. Div. 456, Sept. 11, 1918. WOODWARD, J.: The death of the employee resulted from an accidental injury September 16, 1916, at the plant where a hazardous employment was carried on by the employer. He was, therefore, an employee within the meaning of subdivision 4 of section 3 of the Workmen's Compensation Law (Consol. Laws, chap, 67; Laws of 1914, chap. 41), as amended by chapter 622 of the Laws of 1916. (Matter of Dose v. Moehle Lithographic Co., 221 N. Y. 401; Matter of McNally v. Diamond Mills Paper Co., 223 id. 83.)

In Solomon v. Bonis (181 App. Div. 672; affd., 223 N. Y. 689) the injury occurred in a non-hazardous employment. It is not, therefore, an authority here.

Since the amendment of 1916 a casual employee in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment, is within the act. Under the circumstances of this case, the decedent was not an independent contractor, but in the ordinary employ of the appellant employer.

I am not unmindful of the difficulty in reaching correct decisions in the phase of the Workmen's Compensation Law here presented; but, after a careful study of the authorities, I am persuaded that both law and justice require an affirmance and I so recommend.

All concurred, except LYON, J., dissenting in opinion, in which H. T. KELLOGG, J., concurred.

LYON, J. (dissenting): The sole question presented by this appeal is whether the deceased was an employee of the Underwood Silk Fabric Company, Inc., or an independent contractor. He was a mechanic, and conducted a small shop in his barn known as "The Fixit Shop," in Canajoharie, N. Y. He had there a lathe and tools, and did some work in his shop. He also went about the neighborhood and fixed machinery. The plant of the Underwood Silk Fabric Company, Inc., was directly across the river at Palatine Bridge, N. Y. This company manufactured silk gloves and silk underwear. The president of the company, wishing a new smokestack erected at the plant, was recommended to Peter Cummings as a proper party to do the work. Mr. Cummings came to the plant, looked the work over and said he could do it. He was told to get what help he needed; furnish the appliances; take down the portion of the old stack; put up the new one, and when his work was done, present his bill and it would be paid. Cummings was to furnish what help he might need in addition to two men who were assigned to the work by the company. Cummings obtained the ropes and other necessary tackle for the work about the town. After his death the company returned them- hearing where he had borrowed them of the

expressman who carried them. Cummings had entire charge of the work. He alone directed the doing of the work. He controlled the mode and manner of doing it. The men took orders from him. They worked about five hours Friday and were stopped by the rain. They worked five hours Saturday, and on the way to dinner one of the men asked where they should get their pay. Cummings said to present their time to the company. They worked until four o'clock when the accident happened by reason of the slipping of the hook which Cummings thought would hold. Cummings' heirs presented his time to the company for ten hours, at fifty cents per hour, and were paid. Cummings had a small book in which he entered the hours he had worked for various parties. He charged different prices per hour. March, 1917, the Commission made its award to the widow of Peter Cummings on the basis of Matter of Rheinwald v. Builders' Brick & Supply Co. (168 App. Div. 425).

We think that the finding that the deceased was an employee of the Underwood Silk Fabric Company, Inc., was erroneous.

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Miss Emma Cummings testified that she did not of her own knowledge know under what arrangements Cummings was putting up his smokestack. Homer Fusmer testified: Q. Who did you take orders from while on the job? A. Mr. Cummings; Mr. Underwood gave some orders around there. Q. What did Mr. Underwood tell you to do? A. Different things, while putting the stack together. I cannot just remember what the exact orders were. Q. Who did you consider in charge of the work? A. Mr. Cummings. Q. Who was telling how to do the work? A. Mr. Cummings, naturally, because he was the mechanic on the job. Q. Did you say anything to Mr. Cummings with reference to whether the hook would slip off from the stack, and call his attention to that? A. Yes, sir. Q. What was there to that? A. I told him I thought the hook would slip off from the bottom of the stack. Q. What did he say? A. He said he thought it was safe. Q. Did anyone else tell him that, that you know of? A. I think somebody else said something about it. Q. He said he thought it was safe? A Yes, sir." Webster Bierman testified: Q. Did you take orders on the jobfrom anyone connected with the Underwood Company? A. No, sir. Q. Who did you take orders from? A. Mr. Cummings. Q. He was in sole charge of the work? A. Yes, sir. Q. He conducted the method of putting up the stack? A. Yes, sir. Q. Did you ever see Mr. Underwood giving directions as to how to raise the stack, or anyone connected with the company, as to how to raise it, while you were on the job? A. No, sir." Henry Underwood testified:

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Q. What arrangements did you make? A. Mr. Cairns saw Mr. Cummings and sent him over to me. I took Mr. Cummings out and showed him what I wanted done and asked him if he could do it, as I had to go to Buffalo and couldn't do anything on it myself. I did not want to do it. He said he could; would put the stack up and make a good job of it. I told him, all right; to do it and when he got through to present his bill to us when it was finished and we would pay the bill. Mr. Cummings also was to hire what men he needed to help him and he did so. Q. All the men that had anything to do with the raising of that smokestack were under Mr. Cummings' direction?

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A. Absolutely. Q. You did not furnish the appliances? A. No, sir.

Q. It wasn't the understanding between you that he keep a record of the time and base his charges on the time? A. None at all. No arrangement was made with regard to whether he should be paid by the hour or the amount. Practically the exact words to Mr. Cummings from me were 'Mr. Cummings, you put the stock in place; hire whatever help you need, present as reasonable a bill as possible when the job is finished and we will pay the bill.""

In Matter of Bargey v. Massaro Macaroni Co. (218 N. Y. 410) it was held that the deceased, who was a carpenter engaged in putting a partition on the first floor of the building, the second and third floors of which the corporation occupied as its factory, was not an employee of the corporation within the meaning of the law. In Matter of Rheinwald v. Builders' Brick & Supply Co. (supra) the Commission by a divided court held Rheinwald was an independent contractor and refused compensation. It then certified to the court this question: "In view of the evidence in this case, was Rheinwald an employee within the meaning of the Workmen's Compensation Law?" By a divided court it was held that he was an employee, and the claim was remanded to the Commission to award compensation. Upon appeal from such award it was reversed and the claim dismissed. (174 App. Div. 935.) Upon appeal the order was affirmed, the court holding that Rheinwald was an independent contractor. (223 N. Y. 572.) In Matter of McNally v. Diamond Mills Paper Co. (223 N. Y. 83) the claimant agreed to move the engine from the depot to the plant for a lump sum. The manufacturer agreed to furnish an engineer to superintend the installation. The court said: That he was a contractor while engaged in transporting the engine from the railroad to the mill may be conceded. But when that contract had been performed, he assumed a new relation. He was then employed by the day to work as a laborer with others. He was not in control of the job; he had no power of superintendence or direction; he had no other rank than the regular employees of the mill who were with him; he took his orders from the engineer whom the mill had placed in charge. In this situation, the distinctive tokens of the independent contractor are lacking. The claimant for the purposes of this job was an employee, and nothing more."

I think it must be held that Cummings was an independent contractor and not an employee. I do not think that an independent contractor, by the amendment of 1916 to the definition of an employee, is entitled to compensation even though the employer was engaged in a hazardous employment. The cases cited by the prevailing opinion of Matter of Dose v. Mochle Lithographic Co. (221 N. Y. 401) and Matter of McNally v. Diamond Mills Paper Co. (223 id. 83) were not cases of an independent contractor, but one of employees.

The award should be reversed and the claim dismissed. H. T. KELLOGG, J., concurred.

Award affirmed.

Upon further appeal in the Litts case, the Court of Appeals reversed the Appellate Division's order and dismissed the claim

with opinion holding Litts to have been an independent contractor. Of the definition of "employee" in Workmen's Compensation Law, § 3, subd. 4, it said:

This definition is not inimical to and does not disturb the distinctions established in the common law between a servant or employee and an independent contractor. The rules which demarcated the relation of master and servant from that of employer and independent contractor are operative in the consideration of claims made under the act. From the definitions and language of the act it is manifest that it deals with employers and employees, and an independent contractor is not within its protection.

The opinion in full is as follows:

LITTS V. RISLEY LUMBER Co., 224 N. Y. 321, Oct. 29, 1918.

COLLIN, J.: The state industrial commission decided that Burt Litts died from injuries received as an employee of the Risley Lumber Company while in the course of his employment, under conditions making the Workmen's Compensation Law (Cons. Laws, ch. 67), applicable. They, therefore, made an award of compensation to the claimants, which the Appellate Division affirmed by a decision not unanimous. The evidence, however, is not conflicting. We are to determine whether or not it tends to sustain the finding that Litts was when injured an employee of the company within the intendment of the act.

Three high smokestacks were a part of the industrial plant of the company at Rock Rift, New York. In the spring of 1917 Litts agreed with the company that he would paint the stacks for the sum of fifty dollars. Litts was to furnish the ropes, tackle, scaffolding and implements. The company was to supply the paint and pay the wages of a man to help Litts. On August 21, 1917, the company wrote to Litts, who had not then painted the stacks, as follows:

"Mr. BERT LITTS, Readburn, N. Y.:

"WALTON, N. Y., August 21, 1917.

"DEAR SIR.- When do you expect to be able to paint the stacks that we talked to you about this spring? This ought to be done before the ovens and the boilers are fired up.

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Yours truly,

H. C. MCKENZIE, Treas."

On or about the twenty-eighth day of August, 1917, Litts appeared at the plant of the company with the articles furnished by him necessary for painting the stacks. He said to Bailey, the foreman of the company: Bailey, I don't know who I can get. Can you furnish me a helper for a little while?" Bailey sent to him McGraw who was a day laborer employed by and on the payroll of the company. Litts said he would do. McGraw by means of a rope helped to pull Litts up aside the stacks and hold him when he wanted to stop. On the thirty-first day of August, Litts, because

of the breaking of the rope, fell and was so injured that he died. On August thirtieth, Litts, being unable to work on the stack because of rain, told the foreman he was going home. The foreman gave him inside painting to do which was kept account of separately from that of painting the stacks.

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The act contains this definition: 'Employee' means a person engaged in one of the occupations enumerated in section two or who is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment upon the premises or at the plant, or in the course of his employment away from the plant of his employer; and shall not include farm laborers or domestic servants." (Section 3, subdivision 4.) This definition is not inimical to and does not disturb the distinctions established in the common law between a servant or employee and an independent contractor. The rules which demarcated the relation of master and servant from that of employer and independent contractor are operative in the consideration of claims made under the act. From the definitions and language of the act it is manifest that it deals with employers and employees, and an independent contractor is not within its protection.

In the instant case Litts was an independent contractor. He agreed to do a specific piece of work for the company. In doing it he had absolute control of himself and his helper. He was independent as to when, within a reasonable time after the agreement was made between him and the company and as to where he should commence the work. He was free to proceed in the execution of it entirely in accordance with his own ideas. He was not to any extent subject to the directions of the company in respect of the method, means or procedure in the accmplishment. He was not subject to a discharge by the company because he did the painting in one way rather than in another. Those facts, considered by themselves, would constitute him an independent contractor. In the relation of employer and employee the employer has control and direction not only of the work or performance and its result, but of its details and method and may discharge the employee disobeying such control and direction. (Uppington v. City of New York, 165 N. Y. 222, 232; Hexamer v. Webb, 101 N. Y. 377; McColligan v. Penna. R. R. Co., 214 Penn. St. 229; Linnehan v. Rollins, 137 Mass. 123; Bennett v. Truebody, 66 Cal. 509; Zeitlow v. Smock, 117 N. E. Rep. 665 [Indiana Supreme Court, November, 1917]; Holbrook v. Olympia Hotel Co., 200 Mich. 597; Fidelity & Deposit Co. v. Brush, 168 Pac. Rep. 890 [California Supreme Court, November, 1917]; Thompson v. Twiss, 90 Conn. 444; Messmer v. Bell & Coggeshall Co., 133 Ky. 19.) Moreover, the agreement to paint the three stacks for the specified sum of fifty dollars is indicative, through not conclusive, that Litts became an independent contractor.

The fact that during the progress of the work the company told Litts to do certain acts which were essential to the performance of the agreement, that is, to scrape off and paint well the rusty spots, is not inconsistent with his status or relation as an independent contractor. The relation permitted the company to exercise the degree of control essential to secure the fulfillment of the contract and which did not deprive Litts of the right and opportunity to do the painting in the way he wished. (Uppington v. City of New York,