
    Third Department,
    December, 1949.
    (December 29, 1949.)
    In the Matter of the Claim of Isaac Ginsberg, Respondent, against Hollywood Luggage Corp. et al., Respondents, and Commercial Casualty Company, Appellant. Workmen’s Compensation Board, Respondent.
   Memorandum by the Court. This is an appeal by the Commercial Casualty Company from an award of the Workmen’s Compensation Board in favor of the claimant. The carrier contends that its policy did not cover the work in the location where claimant’s injury occurred, and that the employee was an independent contractor, and that in any event, he was not an employee of the Hollywood Luggage Corp., the alleged employer. The board found that on November 21, 1946, claimant sustained accidental injuries which arose out of and in the course of his employment; that Hollywood Luggage Corp. was his employer and was then engaged in business at 98 Forsythe Street, New York City, and also at 450 Fourth Avenue, New York City. The board also found that claimant was an employee and not an independent contractor, and also that he was not an employee of Parker or of Top Flight Corp. The board also found that prior to claimant’s accident, the appellant issued to Hollywood Luggage Corp. a workmen’s compensation policy of insurance which was in effect at the time of the accident; that prior to the accident the employer notified the appellant to cover the premises at 98 Forsythe Street, New York City, and that coverage was in effect on the date of the accident. The evidence sustains the finding.

Award affirmed, with costs to the Workmen’s Compensation Board.

Deyo, J.

(dissenting). I find nothing in this case to distinguish it from Matter of Di Bari v. Reilly (299 N. Y. 220). True, there was some evidence that the employer’s insurance agent requested the carrier to issue a rider extending coverage to the premises at 98 Forsythe Street, but for all that appears in the record, the carrier never agreed to make such change, nor did it ever issue such rider. The policy provided that no conditions or provisions could be altered, except by indorsement signed by a duly authorized officer, and that notice to an agent was insufficient to effect a change. The terms of the policy as written control, and coverage is therefore limited to the specific location therein designated. (Matter of McMahon v. Gretzula, 227 App. Div. 256; Matter of Civitanova v. Palma, 262 App. Div. 981.)

Heffernan, Brewster and Santry, JJ., concur with Memorandum by the Court; Deyo, J., dissents in a memorandum in which Foster, P. J., concurs.

Award affirmed, with costs to the Workmen’s Compensation Board.  