Summary
In Dunn v. University (N.Y.) 194 N.E. 856, compensation was denied to a claimant employed to operate a gasoline filling station and who was injured in conducting a side line business for his own profit.
Summary of this case from Wamhoff v. Wagner Electric Corp.Opinion
Argued January 15, 1935
Decided February 26, 1935
Appeal from the Supreme Court, Appellate Division, Third Department.
Edward I. Cristy for appellant.
John J. Bennett, Jr., Attorney-General ( Roy Wiedersum of counsel), for State Industrial Board, respondent.
The claimant's employment was confined to the operation of a gas filling station at a regular weekly wage. The permissive operation of a service station for his own profit was not part of that employment, even though the permission may have been granted because the operation of a service station would be convenient, and even though such permission may have induced the claimant to accept the employment. (Cf. Huscroft v. Bennett, 7 B.W.C.C. 41.) The courts below have relied upon the decision of this court in Matter of Johnson v. Roosevelt Memorial Assn. ( 259 N.Y. 641). There the claimant was injured while engaged for the benefit of the employer in the work which he was employed to do, though as remuneration for his work he was entitled to its direct profits. Here the work lay outside the scope of the employment and was performed voluntarily for the benefit of the claimant and not of the employer.
The order of the Appellate Division and the award of the State Industrial Board should be reversed and the claim dismissed, with costs in all courts against the State Industrial Board.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, CROUCH, LOUGHRAN and FINCH, JJ., concur.
Ordered accordingly.