Claim of Geller v. Republic Novelty Works , 180 A.D. 762 ( 1917 )

Kellogg, P. J.:

The employer was not carrying on a hazardous business. It became necessary to have additional shelving in its store. The work would require an employee about three days. The injured employee was a carpenter who worked by the hour for any one requiring his services. He had worked upon the shelving for two days and was -at work upon the last shelf when, on June 25, 1916, he fell 'from a stepladder and was injured. If we assume that he was engaged in structural carpentry at the time of the injury, it does not follow that the employer was carrying on such hazardous employment. A casual engagement of a carpenter by the hour to repair a store or office does not make the proprietor of the store or office one engaged in structural carpentry. (Matter of Bargey v. Massaro Macaroni Co., 170 App. Div. 103; affd., 218 N. Y. 410; Coleman v. Bartholomew, 175 App. Div. 122; Matter of Schmidt v. Berger, 221 N. Y. 26; Matter of Kammer v. Hawk, Id. 378.)

We conclude that the employer is not liable for an accident happening to an employee in such casual service. The award should be reversed and the claim dismissed.

All concurred, except Lyon, J., dissenting.

Award reversed and claim dismissed.