
    New Jersey Department of Labor, Workmen’s Compensation Bureau.
    WILLIAM MATTHEWS, PETITIONER, v. FREDERICK A. SMITH AND ETHEL HART, RESPONDENTS.
    Decided December 9, 1939.
    For the petitioner, Thomas F. Shebell.
    
    For the respondents, Lloyd Beatty.
    
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In this case it is alleged in the petition that the petitioner was involved in an accident at Asbnry Park, New Jersey, on November 23d, 1938, while in the employ of'respondent. In its answer respondent denies there was any relation of employer and employe.

Petitioner in his own behalf testified that he was engaged to build a fence on property of the estate of E. F. Hart, deceased, in Asbury Park, New Jersey, and to clean out pigeons’ nesting under the roof; that he had finished the fence and while standing on a ladder cleaning out the pigeons’ nests, he fell to the ground when the ladder slipped. For his labor he was paid at the rate of seventy-five cents per hour and was to be paid at that rate for the time required to complete the designated work. He further admitted on cross-examination that he was not supervised by anyone in executing the work.

In a proceeding to recover compensation for injuries under the Workmen’s Compensation act it is incumbent upon petitioner to establish the relationship of employer and employe.

At the conclusion of petitioner’s testimony respondent moved for a dismissal of the petition on the grounds, inter alia, that the petitioner had failed to establish this relationship and that in fact his relationship with respondent was that of an independent contractor.

The petitioner’s testimony in my opinion fails to show that respondent retained the right to direct manner or method of doing the work, particularly in view of his admission that he was not supervised in execution of the same, and he therefore is an independent contractor, and not an employe of the respondent.

This finding makes it unnecessary to rule on the other questions raised in respondent’s motion and requires a dismissal of the petition.

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Harry H. Umberger,

Deputy Commissioner.  