tenance and care of a police station is an exclusively governmental function, so that every branch of the work which the claimant was called upon to perform was of a strictly governmental character. (Wilcox v. City of Rochester, 190 N. Y. 137.) In that case the court, writing through WILLARD BARTLETT, J., said: "The question which confronts us, on the branch of this appeal now under consideration, is whether the duty exercised by the city of Rochester, under the general statutes relating to cities of the second class, of maintaining and caring for a police station, is a governmental duty appertaining to the general administration of the State or a duty imposed and undertaken for the benefit of the municipality as a corporate body." The court then proceeded to answer in the affirmative the first question thus propounded. It follows, under the authorities cited, that the relationship of master and servant did not exist between the city of New York and the claimant; that the latter was not in the employ of the former; therefore, that an award of compensation against the appellant in favor of the respondent should not have been made.

I favor a reversal of the award and a dismissal of the claim. COCHRANE, J., concurred.

Award affirmed.

Question may arise whether the victim of an accident has been in the employ of the State or of a municipality. The Military Law of New York allows hostlers to cavalry organizations of the national guard. If the organizations are located in New York city, the city pays the wages of the hostlers. An employee of this class was fatally injured by overhead door casing while driving a horse into a barn (S. D. R., vol. 20, p. 375). The Commission decided that he had been an employee of the city and made award against it. The Appellate Division, one judge dissenting, reversed the award with opinion holding that he had been doing work for the State. The opinion is as follows:

MULLER V. CITY OF NEW YORK, 189 App. Div. 363, Nov. 12, 1919. LYON, J.: The deceased was appointed a laborer under section 188 of the Military Law of the State by the commanding officer of Squadron A. He was paid by the city of New York upon the certificate of the officer appointing him. His duties were wherever the horses of the squadron were sent. The farm where he was at work when injured was owned by Squadron A, cavalry, New York State National Guard. The association was a corporation composed of members of the military organizations. While engaged in the regular course of his employment on June 7, 1918, he was injured. He died as a result thereof two days later. The widow presented a claim for compensation against the city of New York to the State Industrial Commission. The city opposed the claim upon the grounds that the deceased was an employee of the State and not of the city, and that at the time he was injured he was a farm laborer. The Commission made an award in her favor, from which this appeal has been taken.

Was the deceased an employee of the city of New York? Sections 187 and 188 of the Military Law (as respectively amd. by Laws of 1914, chap. 163, and Laws of 1916, chap. 475) authorize the employment of armorers, janitors, engineers, electricians and laborers for the armories and arsenals occupied by the National Guard of the State, and designate the officers by whom they shall be appointed. Section 189 of the Military Law (as amd. by Laws of 1913, chap. 568) provides that the persons so appointed shall receive certain compensation which, within the city of New York, shall be a county charge upon the county in which such armory is situated, and shall be levied, collected and paid in the same manner as other county charges are levied, collected and paid.

We think the deceased was in the military service, and not in the civil service. (Matter of Bryant, 152 N. Y. 412; Matter of Burns v. Fox, 98 App. Div. 507.) The respondent has cited the case of Sexton v. Public Service Commission (180 App. Div. 111). There the engineer was supervising the construction of a part of the subway in the city of New York. He was doing work in the interest of the city of New York, under the direction of the Public Service Commission, First District. In the case at bar the deceased was doing the work of the military organization of the State, although he was being paid by the city of New York. There is no law for the organization of a military service for the city of New York, but the Military Law provides for the establishment, government and duties of persons in the military service of the State.

We have not discussed the question as to the deceased being a farm laborer. The evidence upon that point is meager in the present record, and the decision of that question is not necessary to the determination of the

case.

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

A supervisor of town highways lost his life by the overturning of his automobile while he was leaving the site of a highway job. The Commission awarded death benefits to his widow. Upon appeal, the insurance carrier argued that he was an elective officer, not an employee. The Appellate Division reversed the award upon authority of Bowne v. Bowne Co., 221 N. Y. 28, and Ten Broeck v. Town of Saugerties, Bul., vol. 2, p. 148; 181 App. Div. 910: Bartz v. Township of Lockport, Death Case, No. B-10408, March 21, 1919; App. Div. -, Dec. 29, 1919.

An employee of a foreign government is not a public employee within the meaning of this group; the Commission has denied compensation to an American hostler injured while working for the British Remount Commission, a board collecting horses for use in the war: Clark v. Miller Stock Farm, S. D. R., vol. 20, p. 434, June 12, 1919.

Group 45. Workmen or operatives.— The term "workmen or operatives" in Group 45 applies to laborers, mechanics or artisans but not to clerks or persons in professional work. The Attorney-General has so held in the following opinion:

WORKMEN'S COMPENSATION LAW-AMENDMENT TO SECTION 2 BY THE ADDITION OF GROUP 45.

"Workmen or operatives" specified in group 45, added to section 2 of the Workmen's Compensation Law by Senate Bill, Int. No. 602, Prt. No. 1608, refers to employees who do manual labor or are mechanics or artisans and does not mean clerks or those engaged in professional work.

INQUIRY

The Governor of the State of New York has requested an opinion with reference to the construction of the new Group 45, which is added to the previous groups specified as hazardous occupations under section 2 of the Workmen's Compensation Law. This new group is included with other amendments in Senate Bill Int. No. 602, Prt. No. 1608, which bill is in the hands of the Governor, and which provides that it shall take effect immediately so that it will become a law at once upon its being signed.

This new group 45 is as follows:

"All other employments not herein before enumerated carried on by any person, firm or corporation in which there are engaged or employed four or more workmen or operatives regularly employed, in the same business in or about the same establishment, either upon the premises or at the plant or away from the plant of the employer, under any contract of hire, express or implied, oral or written, except farm laborers and domestic servants." The question is what class of employees are covered by the term "workmen or operatives?"

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OPINION

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The word used throughout the Workmen's Compensation Law at present is that of employee." This group brings in a new term workmen or operatives," which term seems to have been adopted from the Ohio statute, which provides:

"Every person in the service of any person, firm or private corporation, including any public service corporation employing five or more workmen or operatives regularly in the same business or in or about the same establishment under any contract of hire," etc.

The term "workmen or operatives" would seem to have a more restricted meaning than that of " employee" and to refer to laborers, mechanics or artisans who do manual labor, and not to clerks or those engaged in professional work, and it is my opinion that the courts will so construe it.

The Court of Appeals has already held in the case of Bowne v. Bowne Co., 221 N. Y. 28, and Howard v. Howard, 221 N. Y. 605, that the word "employee" does not refer to the executive officers of a corporation but rather to those who were employed for wages or upon a salary.

In Massachusetts it has been held that a janitor, appointed to do all work of cleaning, heating, ventilating, washing windows, care of yards, etc., about two schools, was both a "laborer" and a "mechanic." White V. City of Boston, 226 Mass. 517, 166 N. E. 481. But a teacher, employed at an annual salary in the automobile department of an industrial and vocational school was not a laborer," "workman or "mechanic." Lesner v. City of Lowell, 227 Mass, 44, 116 N. E. 483. In Kansas, a police officer, not being a workman," is not entitled to compensation. Griswold v. City of Wichita, 99 Kan. 502, 162 Pac. 276.

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It has been held in Great Britain that a certified manager of a colliery, receiving 400 pounds a year, who did no manual labor, was not a workman." Simpson v. Ebbw Vale Steel, Iron & Coal Co., 92 L. T. 282, 7 W. C. C. 101.

The same rule is applied as to a chemist, who duties were largely in the making of laboratory experiments and who in connection therewith did considerable manual labor. Bagnall v. Levinstein, 96 L. T. 184, 9 W. C. C. 100.

It is my opinion, therefore, that the term "workmen or operatives" would not be held to include clerical or professional work but would be limited to those who do manual labor or were mechanics or artisans. I can only speak in general terms. It would be difficult, if not impossible, to be more specific with reference to the many employments carried on throughout the State. (See also People v. Interborough Rapid Transit Co.,

169 App. Div. 32.)

Dated, May 4, 1918.

MERTON E. LEWIS,
Attorney-General.

To Hon. CHARLES S. WHITMAN, Governor of the State of New York, Aibany, N. Y.

Upon appeal from an award to an employee injured October 5, 1918, while gathering apples upon an abandoned farm the buildings and grounds of which his employer was renovating for sale at a profit, the Attorney-General averred that the case came under the coverage of this group since the employer had from four to six employees besides the injured workman: O'Dell v. Bowman, S. D. R., vol. 19, p. 523, Bul., vol. 4, p. 166, April 9, 1919; App. Div., Nov. 12, 1919. Opinion of the Appellate division affirming the award appears below, page 146.

E. ELECTIVE COMPENSATION PLAN

Examples of award of compensation against an employer not engaged in a hazardous employment within the compensation law's list but liable because of election under the concluding paragraphs of 2 to be subject to the law are: Campbell v. Y. W. C. A. of Brooklyn, Case No. 226726, April 22, 1919; App. Div. -, Nov. 21, 1919; and Edwards v. American Red Cross, S. D. R., vol. 19, p. 95, Feb. 28, 1919.

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