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Cyrus v. Modart Const. Co., Inc.

Supreme Court of New York, Appellate Division

February 26, 1954

In the Matter of the Claim of JOSEPH CYRUS, Respondent,
v.
MODART CONSTRUCTION CO., INC., et al., Appellants, and JUNCTION HOMES, INC., et al., Respondents. WORKMEN'S COMPENSATION BOARD, Respondent.

Page 369

APPEAL from a decision and award of the Workmen's Compensation Board, filed December 5, 1952, for disability benefits under the Workmen's Compensation Law.

COUNSEL

Seymour J. Bernstein and Bernard Helfenstein for Modart Construction Co., Inc., and another, appellants.

Ralph S. Stowell and Joseph D. Edwards for Junction Homes, Inc., and another, respondents.

Nathaniel L. Goldstein, Attorney-General, for Workmen's Compensation Board, respondent.

Per Curiam.

The only issue on this appeal is the propriety of the joint award of compensation against Junction Homes, Inc. (hereafter referred to as Junction), and Modart Construction Co., Inc. (hereafter referred to as Modart), and their respective insurance carriers, instead of solely against Junction and its insurance carrier.

Junction had constructed five houses, which were at the sale stage. Modart was constructing about forty houses on property immediately adjacent to Junction. Both corporations required a night watchman. Apparently an agreement had been reached between them that they would hire the same man. The newspaper advertisement by Junction's agents was answered by claimant. He was there told that he must be interviewed by Modart's representative, who had to be satisfied that he could perform the duties required of him by both employers before he could be hired. He was taken by Junction's representative to Modart's office for the interview, as a result of which he was hired by both. His pay was to be $60 per week, each employer paying $30. His duties involved keeping watch simultaneously

Page 370

over the premises of both corporations, which he described as 'all in one row. One minute I'd be on one job and the next minute I'd be on the next.'

Claimant worked for two days. It rained on the night he was injured. From Modart's property he noticed open windows in one of Junction's houses. He talked to Modart's representative and asked if anyone was working in the house. Receiving a negative answer, he went to the house to close the windows. He fell while descending the basement stairs and received the injuries for which he was awarded compensation. The decision of the Workmen's Compensation Board awarded compensation against both corporations as joint employers to be paid in equal amounts. Modart and its insurance carrier have appealed to this court contending that, as the employers were distinct and unrelated corporations and as claimant was injured in Junction's house, liability should be found solely against the latter corporation and its carrier.

Both employers contracted with claimant. He was to and did simultaneously perform the work of both under the control of both. These are characteristics of a joint employment. (Larson on Workmen's Compensation Law, ยง 48.40.) The simultaneity of the rendition of services to both employers is clear and distinct here. The properties were adjacent, 'all in one row.' When on either property at any time during his working hours, he was acting within the area and scope of his joint employment. As he said, 'One minute I'd be on one job and the next minute I'd be on the next.' We find nothing in the record indicating any degree of separability in the performance of claimant's duties.

In Matter of Jacobi v. Supreme ...


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