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Shorr v. U-Wanna-Wash Frocks, Inc.

Supreme Court of New York, Appellate Division

November 18, 1954

In the Matter of the Claim of BENJAMIN SHORR, Now Deceased, by LENA SHORR, His Widow, Respondent,
v.
U-WANNA-WASH FROCKS, INC., et al., Appellants. WORKMEN'S COMPENSATION BOARD, Respondent.

APPEAL by the employer and carrier from decisions and awards of workmen's compensation under the Workmen's Compensation Law, made by the Workmen's Compensation Board and filed on July 21, 1952, December 1, 1952 and May 19, 1954. APPEAL by claimant's attorney from the decisions and awards filed July 21, 1952, and December 1, 1952, on the ground that the amount awarded for attorney's fees was inadequate.

COUNSEL

Dunton F. Tynan and Joseph Boochever for appellants.

Martin B. Nadle for claimant-respondent.

Nathaniel L. Goldstein, Attorney-General (Harry Pastor and Roy Wiedersum of counsel), for Workmen's Compensation Board, respondent.

Page 779

Per Curiam.

The question in this case is whether the claimant's employment was a New York employment subject to the New York Workmen's Compensation Law.

The claimant was employed by the appellant employer, a dress manufacturer, as a designer, pattern-maker and copyist. During the first three years of his employment, the claimant worked in New York City at the employer's place of business. During this period, the actual manufacturing was carried on by an independent company in Newville, Pennsylvania, pursuant to a contract with the employer. At the end of the three-year period, the employer purchased the contractor's manufacturing plant in Newville and the claimant moved to Newville and took charge of the cutting department in the factory. The claimant lived in a rented room in Newville for several years and then rented an apartment for himself and his family and ultimately purchased a home there. The employer continued to maintain offices in New York City but no manufacturing was carried on there except for the occasional cutting of sample garments but even these were sent to the Newville plant for sewing.

The claimant held the position of head of the cutting department in the Newville plant for about ten years, down to the time of the accident which is the subject of this claim. During this period, he was called back to the employer's New York office at irregular intervals to confer with the employer's general manager about complicated problems with respect to the cutting operations. During the years 1946 to 1949, the claimant spent a total of two to three months per year in New York City at these conferences, each of which lasted two or three days. When the claimant was called to the New York office, the employer paid the claimant's living expenses while in New York and his railroad fare to and from New York and $25 to $50 in addition for incidentals. These expenses were charged by the employer to the Newville plant. While in New York, the claimant would stay at his son's home or at a hotel.

The claimant was paid by check issued from the employer's New York office but his salary was charged to the Newville plant. The claimant was not carried on the New York payroll. The claimant paid income taxes in Pennsylvania and not in New York, he voted in Pennsylvania and his automobile was registered in Pennsylvania.

There is a reference in the record to the fact that the claimant moved back to Brooklyn in December, 1949, to be near his son and daughter-in-law, but this apparently had no material effect

Page 780

upon the working arrangements between the claimant and his employer.

On March 2, 1950, at the Newville factory, the claimant engaged in an argument with the employer's general manager concerning the manner in which a garment had been cut and, as a result of the ...


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