provised a shower bath at the office. While standing on a marble slab taking a bath under the shower so improvised, claimant's foot slipped and he received the injuries. Held, in a proceeding for compensation under the Workmen's Compensation Law, that the injuries to claimant arose out of and in the course of the employment; the bath being a necessity arising out of the employment and essential to the continuance thereof.

2. WORKMEN'S COMPENSATION LAW HAZARDOUS PLOYMENT-MUNICIPAL CORPORATIONS.

EM

Although claimant was employed by the Public Service Commission, having, under Laws 1907, c. 429, the duty of directing the building of subways in New York City, to supervise the construction of the subway, where he was paid by the city, the city was engaged in the hazardous employment of subway construction, within Workmen's Compensation Law, $2, group 13, as amended by Laws 1916, c. 622, and is liable to claimant for injuries, in view of group 43, making a city liable if it is engaged in a hazardous business, irrespective of the definition of the word "employment" in subdivision 5 of section 3.

Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Law by Joseph M. Sexton against the Public Service Commission of the City of New York, employer and self-insurer. From an award of the State Industrial Commission, the employer appeals. Award affirmed.

Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ.

Lamar Hardy, Corp. Counsel, of New York City (William E. C. Mayer, of New York City, of Counsel, and Terrence Farley, of New York City, and Stanley J. Quinn, of Brooklyn, on the brief), for Appellant.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for Respondent.

KELLOGG, P. J.

The claimant was supervising the construction of a part of the subway in New York City, which work was being performed by Booth & Flinn, Limited, contractors. His work was principally in the tunnel of the subway, except at the end of the month, when he worked on estimates. He was directed by the engineer in charge to survey all the floors under the railroad tracks, underneath the decking in the subway, at Whitehall and Stone street, and while so engaged he became very dirty and his clothes became covered with dirt and filth, which necessitated their being thrown away. He left the subway in this condition about 11.15 o'clock a. m., and it was his duty then to repair to the engineer's field office, about a block away, and make up the estimates, but apparently he could not go in his then condition. It was necessary for him to remove the filthy garments and the filth from his person. In most such offices a shower bath is provided for the men similarly engaged; no such regular bath was provided here, but two or three days before the accident the claimant and his assistant engineer had improvised a shower bath at the office. This bath was provided by the engineer in charge. The claimant wanted to

take his bath in the boiler room, but the engineer directed him to use the shower bath. While standing on a marble slab claimant's foot slipped, and he received the injuries complained of. It is urged that the injuries did not arise out of and in the course of his employment.

[1] It is plain that if the claimant was taking a bath for his own pleasure or comfort, and sustained an injury thereby, it would not arise out of and in the course of his employment in building the subway. But the evidence and findings show that the nature of the employment was such that the employee became very dirty "and covered with dirt and filth and horse manure and everything," to such an extent that he had to throw away his clothes when he got through, and the bath was a necessity arising out of the employment and to enable him to continue it. Leaving the subway at 11:15 it was his duty to get to the field office and continue his work; but he could not continue his work in the field office in his dirty, filthy condition, and it was therefore his duty to the employer to wash up as soon as possible and begin his work in the field office. His work as a subway builder continued until the filth and dirt which smeared him while working there was removed, so that he could perform other duties. The nature of the bath shows its real purpose; he was standing on the marble slab and an assistant engineer with a hose was throwing water over his person. We conclude, therefore, that it was a duty of and an incident to his employment that he should be washed in order to continue his employment, and that the Commission committed no error in finding that the injury arose out of and in the course of his employment.

[2] The Public Service Commission is composed of state officials, but upon those state officials is devolved by law the duty of superintending and directing the building of the subway for the city of New York. Chapter 429, Laws of 1907, as revised and amended by chapter 480 of Laws of 1910 (see, also, chapter 4 of the Laws of 1891). The field offices were used by the Commission with reference to the subway work, and the claimant was employed by the Commission solely with reference to that work, and he was paid for his work by the city upon certificates of the Commission, or its representatives. The city of New York cannot perform the physical acts of building the subway; it must do it through contractors or employees, and its relations with the contractors and employees must be sustained by some official or representative of the city, and it is immaterial whether the representative of the city doing this work for the city was the Public Service Commission or a city official or an employee of the city. Under the amendment by chapter 316 of the Laws of 1914, to subdivision 3 of section 3, and by the addition of group 43 to section 2 of the act by chapter 622 of the Laws of 1916, the city is liable if it is engaged in a hazardous business, irrespective

of the definition of the word "employment" in subdivision 5 of section 3.

We conclude, therefore, that the city of New York, under the statutes, was engaged in the hazardous employment of subway construction under group 13 of section 2 of the Workmen's Compensation Law. The award should therefore be affirmed. All

concur.

SUPREME COURT OF NEW YORK.
APPELLATE DIVISION, THIRD DEPARTMENT. •

MANOR

VS.

PENNINGTON

IN RE ETNA LIFE INS. CO.

WORKMEN'S COMPENSATION ACT-ARISING OUT OF AND IN COURSE OF EMPLOYMENT-EMPLOYEE.

Workmen's Compensation Law § 3, subd. 4, as amended by Laws 1916, c. 622, defines "employee" as a person engaged in one of the enumerated occupations or 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. The decedent's employer was a contractor and had a contract for construction work on the main and second floors of a garage, but had no possession of the basement and made no use of it. During the noon hour, deceased and the other workmen went to the boiler room in the basement to eat their dinner, and, after being away from the premises, decedent returned to the boiler room to await the time for going to work, and was killed by the boiler exploding. Held. that the accident was not one "arising out of and in the course of his employment," as he was not at the time an employee because not performing any of the work for which he was employed. The accident was not due to any risk growing out of the performance of the employer's contract, but a risk arising from the conduct of the garage by its owners.

Kellogg, P. J., and Lyon, J., dissenting.

Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Law by John Manor to obtain compensation for the death of William Manor, opposed by Alfred Pennington, employer, and the Ætna Life Insurance Company, insurance carrier. Compensation was awarded, and defendants appeal. Reversed.

* Decision rendered, Nov. 14, 1917. 167 N. Y. Supp. 424.

Argued before Kellogg, P. J., and Lyon, Woodward, Cochrane, and Sewell, JJ.

William H. Foster, of Syracuse, for Appellants.

Merton E. Lewis, Atty. Gen., and Robert W. Bonynge, of New York City (E. C. Aiken, Deputy Atty. Gen., of counsel), for Respondent.

WOODWARD, J.

The conclusions of fact made by the commission are to the effect that on the 23d day of February, 1917, William Manor was employed by Alfred Pennington; that the latter was a general contractor, with an office for the transaction of business at Plattsburgh; that the employer, at the time of the accident resulting in the death of claimant's intestate, "had a contract for some construction work on the main and second floors of a garage in Plattsburgh, same being the property of Hannan & Henry Garage Company, and William Manor was working on that job." The conclusion continues :

"On said date William Manor and three other men at the noon hour went down to the boiler room to eat their dinner. The boiler room was in the cellar of the garage and at about 12:50 p.m., just before the men were ready to go upstairs to continue their work for the afternoon, the boiler exploded and William Manor thereby received burns from which he died the same.

day."

Upon this basis of fact the State Industrial Commission has made rulings of law holding that the case comes within the provisions of the Workmen's Compensation Law, and that the claimant, decedent's father, is entitled to an award during his dependency.

How can it be said that this accident was one "arising out of and in the course of his employment"? The employer's contract was for doing some work on the first and second floors of an existing garage. The forenoon's work had been done and the men had left the work and had gone out for dinner; the evidence is that William Manor had been away from the premises, and that he returned and went down into the boiler room in the basement, to await the time for going to work at 1 o'clock, and at 10 minutes before 1 o'clock the boiler belonging to the garage, not to the employer, exploded, with the result as stated. The wholly uncontradicted evidence is that the employer made no use whatever of the basement; his contract did not relate to that part of the building, and if the men went down into that basement to eat their dinner they were as much out of the jurisdiction and control of the employer as though they had crossed the street and entered some other building. The employer was in possession of the first and second floors for the purposes of the work, but his possession did not extend to any other part of the building, and the men, by electing to go into the basement rather than to some other place for eating their dinner, could not impose the

duties of an insurer upon the employer during the time that they were lawfully and properly absent from the place of their employment. Manor was not an employee because he was not engaged in performing any of the work for which he was employed (Matter of Bargey vs. Massaro Macaroni Co., 218 N. Y. 410, 413, 113 N. E. 407); his injuries did not arise out of his employment in any other sense than that he was, probably, in that locality, because he was employed upon the first and second stories of the building, but he was not at the time doing anything for the employer, any more than he would have been if he had been waiting in the office of a local hotel for the expiring of the dinner hour.

The accident which happened was not due to any risk growing out of the performance of the employer's contract; it was such a risk as arose from the conduct of the garage by its owners, with which the employer had no relation, and the employee could have been performing no service for the master. "Employee," as now defined for the purposes of the Workmen's Compensation Law, "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" (section 3, subd. 4, as amended Laws 1916, c. 622), and this accident did not occur upon the premises or at the plant of the employer, but upon the premises or at the plant of the Hannan & Henry Garage Company, where neither the employer nor the employee had any rights, except by the license of the owners; it occurred "away from the plant of his employer," not "in the course of his employment"; he was performing no work whatever; he was awainting the hour to return to his employment in a part of the premises which were in the possession and control of third persons; and the law does not extend its protection to one thus situated.

The award should be reversed. All concur, except Kellogg, P. J., and Lyon, J., dissenting.