
    Before State Workmen’s Compensation Commission. In the Matter of the Claim of William E. Mihm for Compensation to Himself under the Workmen’s Compensation Law, v. William M. Hussey, Employer, and Commercial Casualty Company, Insurance Carrier.
    Third Department,
    November 10, 1915.
    "Workmen’s Compensation Law — “ warehousing ” defined — injury to employee of produce merchant.
    An employer in order to be engaged in “ warehousing ” within the meaning of the Workmen’s Compensation Law, must be engaged in storing goods “for pecuniary gain.” Hence, an employer in the wholesale business who, in connection therewith, maintains a place in which to store his goods is not engaged in warehousing within the meaning of the statute and an employee, whose hand was -injured while tiering barrels, is not entitled to an award.
    Kellogg and Howard, JJ., dissented, with opinion.
    Certification of a question by the State Workmen’s Compensation Commission to the Appellate Division, under section 23 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), upon reconsideration of a claim for compensation.
    
      Otto D. Parker [Henry Siegrist of counsel], for the insurance carrier.
    
      Egbert E. Woodbury, Attorney-General [Harold J. Hinman of counsel], for the Commission.
    
      Benjamin Axleroad, for the claimant.
   Lyon, J.:

The State Industrial Commission has certified to this court the question: “Was the claimant at the time of the injury engaged in a hazardous employment within the meaning of the Workmen’s Compensation Law, and entitled to compensation as a result of injuries arising out of and in the course of such employment.” The employer was engaged in the wholesale produce business, with an office at 348 Broadway, Albany, N. Y. In connection with said business, and upon said premises, he maintained a warehouse or place of storage in which the produce owned by him was kept in storage until sold at wholesale.

The claimant was in his employ as shipper, and on the 28th of September, 1914, while tiering barrels of vinegar, weighing about 500 pounds each, in the storehouse, his right hand was pressed against a brick wall, injuring the second and third fingers. The Commission has found that the injuries were accidental, arose in the course of employment, and were without fault of the employee.

The alleged hazardous employment in which claimant was engaged is embraced in group 29 of section 2 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), which is as follows: “Milling; manufacture of cereals or cattle foods, warehousing; storage; operation of grain elevators.”

The single question, therefore, for decision is whether the claimant was engaged in the “employment” of “warehousing ” at the time he sustained his injuries. Warehousing is defined in the Century Dictionary as “1. The act of placing goods in a warehouse. 2. The business of receiving goods *for storage.” “‘Employment’ includes employment only in a trade, business or occupation carried on by the employer for pecuniary, gain.” (Workmen’s Compensation Law, § 3, subd. 5.)

Claimant’s employer was not carrying on the business of warehousing for pecuniary gain, hence the submitted question should be answered in the negative.

All concurred, except Kellogg, J., who dissented in opinion, in which Howard, J., concurred.

Kellogg, J. (dissenting):

It is urged that the employer was storing only his own goods and .was not engaged in the business of storage, and that the statute contemplates a warehousing business or storage business carried on for the storage of goods of others for hire. We think this is too narrow a construction of the law. If the employer has a large storage warehouse and was receiving-heavy packages of merchandise which were to be moved from time to time by his employees, the risk to them is the same whether he is storing the goods for himself or for others. The statute is a beneficial one, intended to throw upon the business the risks incident to and resulting from it, and the liability ought not to depend upon the question whether the goods in storage were the goods of the employer or the goods of others. In the same group is the operation of grain elevators. It is immaterial whose grain is being elevated, whether the elevator is used for the grain of the employer or of another. The nature of the hazard is the important thing.

G-roup 10 of section 2 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41) is “Long-shore work, including the loading or unloading of cargoes or parts of cargoes of grain, coal, ore, freight, general merchandise, lumber or other products or. materials, or moving or handling the same on any dock, platform or place, or in any warehouse or other place of storage.” This group gives color to the construction we have taken of group 29 of section 2. It is the handling of the cargoes, or parts of cargoes, the moving of heavy merchandise, that is deemed a hazardous business.

While the employer did not receive compensation for storage of his own goods, he was storing his goods for profit and was operating the warehouse part of his business in order that his profits might be enhanced. Whenever he received an order he had the goods in his storehouse with which to* fill it. The operation of the storehouse was a necessary part of his business, and the storehouse was maintained by him for profit. Apparently the claimant’s employment was in receiving, shipping and handling the produce in the warehouse for storage.

We, therefore, conclude that the question submitted to the court should be answered in the affirmative.

Howard, J., concurred.

Question certified answered in the negative.  