Third Department, May, 1920. [Vol. 191. Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of JOHN R. EVANS, Respondent, for Compensation under the Workmen's Compensation Law, v. UNITED STATES RAILROAD ADMINISTRATION (NEW YORK CENTRAL RAILROAD), WALKER D. HINES, as Director General of Railroads, Employer and Self-Insurer, Appellant. Third Department, May 5, 1920. Workmen's Compensation Law - brakeman handling intrastate freight on train engaged in interstate commerce. A brakeman on a local freight train carrying interstate shipments who, in addition to his work as brakeman, acted as flagman, assisted in switching cars to and from his train and helped in loading and unloading less than car lots at way stations, is engaged in interstate commerce while transferring an intrastate shipment from a car standing on a switch to a car in the train on which he is working, and he is not entitled to an award under the Workmen's Compensation Law for an injury received while engaged in making such transfer. JOHN M. KELLOGG, P. J., dissents. APPEAL by the defendant, United States Railroad Administration (New York Central Railroad), Walker D. Hines, as Director General of Railroads, from a decision and award of the State Industrial Commission made on the 24th day of October, 1919. Visscher, Whalen & Austin, for the appellant. Charles D. Newton, Attorney-General [E. C. Aiken, Deputy Attorney General, of counsel], for the respondents. H. T. KELLOGG, J.: The claimant was a brakeman on a local freight running between Watertown and Ogdensburg. The train was made up of intrastate cars, but carried a few packages of interstate freight. It was the duty of the claimant, in addition to his work as brakeman, to act as flagman to warn other trains, to assist in switching cars taken from or to be added to his train, and to help in loading or unloading less than carload freight at various way stations. At the time of the infliction App. Div.] Third Department, May, 1920. of the injury complained of the train had stopped at Philadelphia, N. Y., alongside a freight car standing on a switch. The claimant had gone aboard this car, and was handling a barrel of oil, when another barrel fell against his hand, injuring one of his fingers so that amputation afterwards became necessary. It was the purpose of the claimant to roll the barrel from the car in which he was working over a plank into a car of his own train. As the local train carried interstate as well as intrastate freight it is not doubted that the claimant was generally employed in interstate transportation. It is urged, however, that at the moment the duties of the claimant were not interstate, for the reason that he was transferring an intrastate package from a stationary car for shipment upon the train to a local point. It has been held that a brakeman on a train containing both intrastate and interstate cars, while engaged in cutting out from the train an intrastate car, in order that the train might proceed upon its interstate journey, is engaged in interstate commerce. (N. Y. C. R. R. Co. v. Carr, 238 U. S. 260.) If the cutting out of an intrastate car from an interstate train is interstate work, then the work of adding such a car to such a train, performed by a brakeman upon the train, must also be interstate. Consequently, the work of removing an intrastate package from a car of such a train, or of transferring an intrastate package to such a car, when performed by one of the brakemen of the train, must equally well be interstate. The transfer of the package might originate an intrastate shipment, but it would likewise serve an interstate purpose, for the transportation of interstate packages could not proceed until the transfer was complete. It would introduce great confusion if it were held that whenever a brakeman on an interstate train laid hands upon an intrastate package, or whenever a conductor of such a train took up a ticket from an intrastate passenger, the interstate character of the employment would momentarily be lost, to be again resumed at a subsequent moment, so that duties would be constantly shifting back and forth between interstate and intrastate work. It seems to me that the general duty of furthering interstate transportation continues to engage a trainman even though APP. DIV.- VOL. CXCI. 45 Third Department, May, 1920. [Vol. 191. the train stops in order that he may load on an intrastate package. For these reasons the award to claimant for the injury to his finger should be reversed. The award is reversed and the claim dismissed. All concur, except JOHN M. KELLOGG, P. J., dissenting. Award reversed and claim dismissed. Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of ROSE Fox, Respondent, for Compensation under the Workmen's Compensation Law, v. BACHNOR BROTHERS CO., INC., Employer, and the TRAVELERS INSURANCE COMPANY, Insurance Carrier, Appellants. Third Department, May 5, 1920. Workmen's Compensation Law determination of weekly wage where claimant employed for five weeks only preceding injury — when average wages of employee of same class used as basis — compensation for loss of leg where weekly wage less than five dollars. Where a claimant had been engaged for a period of five weeks only before the injury, her average weekly wage cannot be determined by applying the provision of subdivision 1 of section 14 of the Workmen's Compensation Law. And where the claimant was new at the work her weekly wage should be determined under subdivision 2 of section 14 of the Workmen's Compensation Law by taking as a standard the average wage of an employee of the same class in a similar employment in the same or a neighboring place. Compensation awarded for the loss of a leg where the weekly wage is less than five dollars per week must be, under subdivision 5 of section 15 of the Workmen's Compensation Law, the full amount of the weekly wage. APPEAL by the defendants, Bachnor Brothers Co., Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 27th day of June, 1919. Amos H. Stephens [E. C. Sherwood and William B. Davis of counsel], for the appellants. Charles D. Newton, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], for the respondents. App. Div.] Third Department, May, 1920. H. T. KELLOGG, J.: The claimant has been awarded compensation for ninety per cent of the loss of the use of the right leg, at a rate calculated upon the basis of a weekly wage of nine dollars. At the time of her injury she had been engaged in the manufacture of gloves for the period of five weeks. She fetched the gloves upon which she worked to her home, and there performed her work. The highest weekly wage she had earned was three dollars and sixty cents and the lowest was twenty-five cents. It is plain that this is not a case where weekly wages may be determined by applying the provision of subdivision 1 of section 14 of the Workmen's Compensation Law, for the reason that the claimant had not been employed substantially for a year immediately preceding the injury. As the claimant was new to the work it would also be unfair to estimate her weekly wages by using as a sole criterion the actual earnings made by her. We must have recourse, therefore, to subdivision 2 of the section, and take as a standard the average wages of an employee of the same class in a similar employment in the same or a neighboring place. It appeared without contradiction that employees in this vicinity who took gloves home for work thereupon averaged three dollars per week. It is provided in subdivision 5 of section 15 that for the loss of a leg the compensation awarded shall not be less than five dollars a week. This provision is immediately succeeded by the following condition: "provided, however, that if the employee's wages at the time of injury are less than five dollars per week he shall receive his full weekly wages.' It is evident, therefore, that the compensation payable is three dollars per week, for under the method of determining wages which must be used here that is the sum which must be regarded as the "full weekly wages " of the claimant. The award is reversed and the claim remitted to the Commission for further action in the premises in accordance herewith. All concur. Award reversed and matter remitted to the Commission for further action. Second Department, May, 1920. [Vol. 191. THE PEOPLE OF THE STATE of NEW YORK, Respondent, v. PHILIP BROWN, Appellant. Second Department, May 7, 1920. Crimes information charging defendant with knowingly receiving stolen property — conviction cannot be sustained on evidence that defendant bought property without making inquiry as to legal right of person to sell. A person charged in an information with receiving stolen property knowing the same to have been stolen, which was a crime at common law, cannot be convicted on evidence that he was a dealer in junk and that he bought metal in the form of ingots without ascertaining by diligent inquiry that the person selling or delivering the same had a legal right so to do, contrary to the provisions of section 1308 of the Penal Law, as such evidence establishes a purely statutory crime which was not charged in the information. APPEAL by the defendant, Philip Brown, from a judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, rendered on the 15th day of September, 1919, convicting him of the crime of criminally receiving stolen property in the second degree. Joseph Weber [Abraham Harawitz with him on the brief], for the appellant. Harry G. Anderson, Assistant District Attorney [Harry E. Lewis, District Attorney, with him in the brief], for the respondent. JAYCOX, J.: The evidence in this case failed to support the information. The information was the ordinary information for receiving stolen property knowing the same to have been stolen. The evidence, on the contrary, tended to show that the defendant was a dealer in junk and that he bought metal in the form of ingots without ascertaining by diligent inquiry that the person selling or delivering the same had a legal right so to do, contrary to the provisions of section 1308 of the Penal Law. That it was for the crime last described of which the defendant was convicted, and not the ordinary receipt of stolen property with knowledge that it was stolen, is made evident by the |