Claim of Bemis v. Friedman , 1 A.D.2d 860 ( 1956 )

Appeal by the alleged employer and her insurance carrier from an award of compensation.. The sole issue upon this appeal is whether there is substantial evidence in the record to sustain the finding that claimant was an employee and not an independent contractor. The alleged employer owned a dairy farm which was managed by a foreman. Claimant and others had been working together filling silos in the neighborhood when they were approached by the foreman and asked to fill the silos on the farm which he managed. The foreman specifically asked claimant to help and knew he was charging $3 per hour for his labor and the use of his tractor. At the alleged employer’s farm, the foreman told the silo fillers where to start cutting the corn and which silo to fill first. He gave some assistance himself and placed two of the regular farm employees in the silos to help with the project. While fastening a chain and rope owned by the alleged employer to his tractor, claimant sustained injuries which resulted in a 95% loss of use of his right hand. There is proof in the record of supervision and control by the foreman sufficient to sustain the finding of the board that claimant was an employee of the alleged employer and not an independent contractor. (Matter of McCracken v. Abbey of Gethsemani, 285 App. Div. 1100.) Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board. Present — Foster, P. J., Coon, Halpern, Zeller and Gibson, JJ.