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Mietlinski v. Hickman

Supreme Court of New York, Appellate Division

December 28, 1954

Mietlinski
v.
Hickman

APPEAL from a decision and award of the Workmen's Compensation Board, filed December 29, 1952, for workmen's compensation under the Workmen's Compensation Law.

Page 307

COUNSEL

John P. Cox for appellants.

Fordyce J. Hartman for Caesar Szal and another.

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

HALPERN, J.

The facts out of which this compensation controversy arises are the following:

The claimant was, in the first instance, concededly employed by Szal Brothers, a partnership consisting of Caesar and Martin Szal, to work on a garage which the partnership was building on the appellant Hickman's farm, pursuant to an oral contract for the lump sum price of $2,875. The claimant, and one other workman employed by the Szals, were each paid $1.25 per hour or $10 per day for an eight-hour day. The Szals also worked on the job themselves. The garage contract provided for the construction of a concrete block garage similar to one which the

Page 308

Szals had just completed for another customer. The Szals were responsible for the entire structure; in fact, they let a subcontract to another company for the doors of the garage.

When the garage was practically completed, except for the roof, Hickman asked one of the Szals to do the masonry work, including the walls, window sills and floor, of the first story of a two-story barn which he desired to build. The barn was to adjoin the garage and to share a common wall with it. Hickman had no blueprints for the proposed barn and had not yet decided the location and the exact dimensions of the windows and doors, so the Szals were not able to give him a lump sum price for the work. They agreed, however, to do the work of laying the concrete blocks for the walls at 25¢ per block, Hickman to pay the same price for the blocks themselves as that at which the Szals bought them from the block manufacturer. For the other work, laying the floor, etc., the Szals were to be paid at the rate of $2.25 per hour for every man-hour devoted to the job. The unit charge of 25¢ per block for laying the blocks was the same as that which the Szals had used in computing their bid on the garage job.

The claimant and his fellow worker were transferred by the Szals from the garage job to the barn job. There is some evidence in the record that Hickman told the Szals to hire the claimant to work on the barn but the evidence is clear that the claimant was already working for the Szals and the most that can be made of the testimony on this point is that, when the Szals objected to taking on the barn job on the ground that they would have to hire some men to help them do it, Hickman suggested that the Szals continue the employment of the claimant. There was no change in the rate of compensation of the claimant nor was there any change in his relationship to the Szals when he was transferred from the garage to the barn job. He continued to be paid in cash by the Szals at the end of each week at the rate of $1.25 per hour. This rate had been fixed by the Szals, without Hickman's authorization or direction.

Under the arrangement between the Szals and Hickman, the Szals retained for themselves the difference between the amount which they paid to the claimant and to his fellow employee and the amount which they charged to Hickman for the work at the unit prices. This constituted the Szals' profit on the job, including compensation for their own services. Hickman made no payment to the claimant or the ...


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