
    In the Matter of the Claim of Mabel Hunt et al., Respondents, against Foster Wheeler Corporation et al., Appellants. Workmen’s Compensation Board, Respondent.
   Appeal by Foster Wheeler Corporation and its insurance carrier from an award and decision of the Workmen’s Compensation Board reversing that portion of a referee’s decision which found that the firm of Alexander, Shumway So Utz was the special employer of the decedent herein, and assessed the entire award for death benefits against the Foster Wheeler Corporation. Decedent was employed by the Foster Wheeler Corporation as a tender and loadover machine operator. Some time prior to the accident which caused decedent’s death the Foster Wheeler Corporation and the Alexander, Shumway So Utz company entered into an agreement whereby the latter outfit was to prepare a site and foundation on a cost plus basis for the former corporation. These companies had had similar transactions before. As a part of the agreement between them any equipment owned by the Foster Wheeler Corporation could be borrowed by Alexander Shumway & Utz along with an operator to run the equipment. Such borrowing was of course without charge because of the cost plus arrangement, and was obviously advantageous to the Foster Wheeler outfit. On June 23, 1952, the Alexander, Shumway & Utz company requested the use of a loadover machine and its operator from the Foster Wheeler Corporation. Decedent was dispatched with the machine, and while operating the same under the direction of the construction company he suffered an accident from which he subsequently died. It clearly appears that decedent remained on the payroll of the Foster Wheeler Corporation although his time was charged against the building project in question. It also appears that he was subject to recall at any time by his general employer. It is quite possible that under this state of facts the board could have found a special employment as well as a general employment but it was not required to do so. (Matter of Cook v. Buffalo Gen. BLosp., 283 App. Div. 899.) Award unanimously affirmed, with costs to be divided between the State Insurance Fund and claimant-respondent. Present — Foster, P. J., Bergan, Coon, Imrie and Zeller, JJ.  