165 N. Y. 222; Boyd v. Chicago & N. W. Ry. Co., 217 Ill. 332; Carleton v. Foundry & Machine Products Co., 165 N. W. Rep. 816 [Michigan Supreme Court, December, 1917].)

The fact that the company furnished the paint and the helper does not conflict with the evidence here that Litts was independent of and uncontrolled by the company in the mode and means of doing the work. Litts was free to apply the paint as he chose. The helper was subject to his orders alone. The power was his throughout the performance of the job to determine and direct the particular manner in which the paint and the appliances should be used and the acts of the helper. (Perham v. American Roofing Company, 193 Mich. 221; Miller v. Minn. & N. W. Ry. Co., 76 Iowa 655.)

The order should be reversed and the determination of the state industrial commission annulled, and claim dismissed, with costs against the state industrial commission in this court and in the Appellate Division.

HISCOCK, Ch. J., CHASE, CUDDEBACK, HOGAN, MCLAUGHLIN and CRANE, JJ.,

concur.

Order reversed, etc.

The Appellate Division reheard the Cummings case and upon authority of the Court of Appeals decision in the Litts case, reversed the award to Mrs. Cummings, January 14, 1919.

November 22, 1918, the Appellate Division, upon authority of the decision of the Court of Appeals in the Litts case, reversed an award to a junk gatherer injured while doing for a specified sum a special job of breaking up a balance wheel for a junk dealer: Levine v. Gold's Sons, S. D. R., vol. 14, p. 691, Bul., vol. 3, p. 78, Nov. 15, 1917; 186 App. Div. 932, Nov. 22, 1918.

A piece worker upon coats worked at his own home and employed and directed help; the Commission awarded him compensation for infection due to prick of a needle; upon appeal, the insurance carrier could not persuade the courts to distinguish his case from Fiocca v. Dillon, S. D. R., vol. 7, p. 399, Feb. 1, 1916; 175 App. Div. 957, Nov. 15, 1916, and to declare him an independent contractor; the award was affirmed without opinion: Liberatore v. Friedman, Case No. 60592, Feb. 8, 1918; 185 App. Div. 900, July 2, 1918; 224 N. Y. Rep. 710, Nov. 26, 1918.

A junk dealer's employee was cutting iron from a bridge; the bridge broke down, injuring him fatally; the Commission awarded death benefits; upon appeal, the carrier attempted to prove that he was an independent contractor; the Appellate Division, however, affirmed the award unanimously and without

opinion: White v. Berkman, Death Case, No. A-606, April 19, 1918; 186 App. Div. 926, Nov. 13, 1918.

A workman was removing the awnings from fourteen apartment houses owned by a company. He was a piece-worker at ten cents per awning. In the course of the task he fell, breaking his arm and otherwise injuring himself. The Commission awarded compensation to him as a claimant against the company. Upon appeal the company argued that he was not its employee but was either an independent contractor himself or was in the employ of an independent contractor with whom it had had dealings and who had sent him to it. The Appellate Division affirmed the award upon evidence set forth in the following opinion:

ABROMOWITZ V. HUDSON VIEW CONSTRUCTION Co., 188 App. Div. 356, June 30, 1919.

LYON, J.: The decision of this appeal depends upon whether the claimant was an employee of the Hudson View Construction Company, or an independent contractor.

The construction company was the owner and engaged in the maintenance and care of apartment houses in the city of New York, one of which was at 884 Riverside drive. On such apartment houses were several thousand awnings which were put up and taken down each year. On September 23, 1918, while the claimant was engaged in taking down an awning at 884 Riverside drive, he lost his balance and fell from the third story to the ground, and sustained injuries which disabled him from working from that date to December 2, 1918, at which time he was still disabled. The State Industrial Commission awarded him compensation for ten weeks at the rate of fifteen dollars per week, and continued the claim for further hearing. From such award this appeal has been taken.

From April, 1918, the claimant had been employed by Benjamin Feinberg, a manufacturer of window shades and awnings, as an awning hanger and remover, working by the day, and a greater part of the time at piece work. In September, 1918, Feinberg at the office of the construction company had a conversation in which it was stated to him that the construction company wanted all the awnings removed from its apartment houses, and asked him if he could send the same man who took them off before. Feinberg said he did not know where the man was, but that he had a good man whom he could recommend who would take the awnings down and charge them ten cents an awning, because that is what he paid him. Feinberg told claimant of the conversation and sent him to the construction company, telling him to go and look at the job and see if he wanted to take it on himself. He went to the construction company and said to them that he was the man whom Feinberg had sent about the awnings, and Mr. Friedman, the representative of the construction company, told him to go ahead, and for each awning he

removed he got ten cents. He was told what house to work on. Claimant had pliers with him and went to work, and the eighth day the accident happened. He was taken to the hospital. He said no one came to see him and he did not know who was responsible; and he called up Feinberg to ask him whom he worked for and Feinberg told him he was working for Friedman. The claimant testified he had worked for other people on the same terms, and after he had finished working for Friedman, he would have gone back to Feinberg to find whether he had any work for him. The claimant had never worked for the construction company before. He could work such hours as he pleased. The construction company simply designated the houses where he was to take down awnings, and retained the right to discharge him in case he did not do his work properly. The claimant was not the regular employee of any person, but worked for any one needing his services. The claimant testified: "I couldn't go and get anybody to put on the job, because Mr. Freidman wouldn't have let me. He could have discharged me any time he wanted to."

From the evidence in the case the Commission could find that the Hudson View Construction Company retained the control and direction of the details and method of performing the work, and could discharge the claimant if he disobeyed its orders.

The Commission having found that the construction company was the employer and there being evidence to support such finding, the award should be affirmed.

All concurred, except COCHRANE, J., dissenting. Award affirmed.

The Court of Appeals affirmed the Appellate Division's order in the Abromowitz case without opinion, January 20, 1920.

D. HAZARDOUS EMPLOYMENTS

Opinions and decisions interpretative of the various groups of Workmen's Compensation Law, § 2, prior to June 1, 1918, have been presented in Bulletin No. 81, pages 102-110, 262-266, and Bulletin No. 87, Part 1, pages 57-87. Opinions since June 1, 1918, are presented here.

Group 8. Admiralty and maritime jurisdiction. The topic is presented below, pages 243-259. The clause, "other than vessels of other states or countries used in interstate or foreign commerce, when operated or repaired by the company," has been applied to the exclusion of awards in Charlton v. Hilton-Dodge Trans. Co., Bulletin 87, pages 304–307, and Patterson v. Lehigh Valley Trans. Co., S. D. R., vol. 19, p. 453, Feb. 14, 1919.

Group 10. Longshore work. An employee hired for his skill in supervising the stowing of goods upon a vessel was accidentally hurt while on the dock. Commissioner Lyon held the case to come within group 10 and not within group 8: Newham v. Arne & Co., S. D. R., vol. 21, p. 441, Nov. 11, 1919. Compare Edwardsen v. Jarvis Lighterage Co., Bulletin 81, page 262.

Group 14. Logging. A farm laborer engaged in logging is not covered by this group: Brockett v. Mietz, 184 App. Div. 342, July 2, 1918. Full text of the opinion appears below, page 148.

Group 16. Upholstering. Taking up an old carpet and putting down a new one is not upholstering. The Appellate Division has so held, reversing an award of the Commission, with opinion as follows:

STRADER V. STERN BROS., 184 App. Div. 700, Nov. 13, 1918. WOODWARD, J.: The claimant, in presenting his claim for compensation, gave his occupation at that of a carpet-layer. The employer's first report of the injury gave the same answer to the question as to the nature of claimant's work, and no one disputes these declarations. Indeed, the award is based upon the fact that while the claimant was engaged on June 7, 1917, in laying a carpet in the Democratic Club at 617 Fifth avenue, New York, he dropped his knee upon a tack, receiving an injury resulting in subsequent infection of his limb. The State Industrial Commission has made an award

[65]

upon the strength of testimony by a member of a labor union that a carpetlayer is an upholsterer within some of the provisions of a labor organization, holding that the injury comes within the limits of group 16 of section 2. This group of the Workmen's Compensation Law is: "Manufacture of furniture, interior woodwork, organs, pianos, piano actions, canoes, small boats, coffins, wicker and rattan ware, upholstering; manufacture of mattresses or bed springs." (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], § 2, group 16, as amd. by Laws of 1916, chap. 622.)

66

It is entirely obvious that " upholstering," as used here, is in its manufacturing sense, a branch of lounge and parlor chair manufacturing, or a similar line of work in connection with the permanent decoration of houses; and no rule of construction can justify extending the word “ upholstering' to cover the mere laying of a carpet. "Upholster" is defined by Webster: "To furnish (rooms, carriages, bedsteads, chairs, etc.) with hangings, coverings, cushions, etc.; to adorn with furnishings in cloth, velvet, silk, etc., as to upholster a couch; to upholster a room with curtains." The same authority defines upholsterer as one who provides hangings, coverings, cushions, curtains and the like; one who upholsters." We are required to give to words in a statute their ordinary and obvious meaning. The Workmen's Compensation Law is no exception to this rule, when cases reach this court. We may take judicial notice, in the absence of legislative enactment, that the mere laying of a carpet is not a hazardous occupation; it is not within the spirit of the law. The group in which we find upholstering is a manufacturing group; is a group in which machinery and tools and manufacturing conditions exist; and the word should be given the construction which its association in the statute suggests, even though it might have a broader meaning under exceptional circumstances. This is specially true when the word does not come within any of the definitions, fairly understood, given by the standard lexicographers. The Legislature has, with reasonable clearness, extended the original scope of the act, but it has not yet made the laying of carpets a so-called hazardous occupation.

The award should be reversed and the claim dismissed. All concurred, except JOHN M. KELLOGG, P. J., and COCHRANE, J., dissenting. Award reversed and claim dismissed.

Group 22. (1) Operation of elevators.- Children operating elevators in violation of the Labor Law are within the Workmen's Compensation Law's coverage: Robilotto v. Bartholdi Realty Co., 104 Misc. 419, Sept., 1918. Text of the opinion in this case is given below, page 161.

(2) Heating and lighting.— Incidental heating of a saloon by a self-regulating boiler is not within this group's coverage: Hermann v. Wolff, S. D. R., vol. 18, p. 609, Bul., vol. 4, p. 8, Dec. 23, 1918.

Group 23. Manufacture of metal wares.-A hardware merchant who puts together coffee mills, lawn mowers, etc., that