
    Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Katie Kohler, Claimant, Respondent, for Compensation to Herself and Children under the Workmen’s Compensation Law, for the Death of Nicholas Kohler, v. Harry Frohmann, Employer, and The Fidelity and Casualty Company of New York, Insurance Carrier, Appellants.
    Third Department,
    May 5, 1915.
    Workmen’s compensation — evidence — burden on master to show that occupation was not hazardous — injury to employee while operating electric meat chopper.
    An employer and his surety, contesting an award to an employee under the State Workmen’s Compensation Law, is under the burden of showing that at the time of the injury the employee was not working at a hazardous employment, if such be the contention.
    Hence, in the absence of such proof on the part of the employer, the Workmen’s Compensation Commission is justified in finding that one who was employed by a retail butcher and was injured while operating an electric meat chopper was at the time engaged in a hazardous employment.
    The malting of sausage meat by means of an electric meat chopper is a hazardous employment within the meaning of group 30 of section 3 of the Workmen’s Compensation Law, relating to the preparation of meats and meat products.
    
      Appeal by Harry Frohmann and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 20th day of October, 1914.
    
      Nadal, Jones & Mowton [Edward P. Mowton of counsel], for the appellants.
    
      Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], representing the Commission.
    
      Jeremiah F. Connor, for the Commission.
   Kellogg, J.:

The employer was a retail butcher carrying on a market at 1850 Park avenue, New York city. The intestate was in his employ, and while grinding meat in an electric meat chopper lost four fingers of his right hand which resulted in lobar pneumonia, causing his death, and the Commission has made an award for the benefit of his widow and children.

The appellants contend that the intestate was not engaged in an employment declared hazardous by the statute, and was not, therefore, within its provisions, and that the finding.of the Commission is contrary to law and the evidence.

Under group 30 of section 2 of the Workmen’s Compensation Law compensation is to be made for injuries sustained or death incurred by an employee engaged in the hazardous employment, Packing houses, abattoirs, manufacture or preparation of meats or meat products or glue. ” While the intestate was putting meat into the electric chopper, and was forcing it in with his fingers, he received the injury. It does not appear what kind of meat he was grinding or for what purpose it was being ground. The employer, in his report, gives no further details of the matter. Evidently he knew, or had the means of knowing, the particular purpose for which the chopper was being used at the time of the accident. It does not appear that the intestate was not grinding the meat for sausage or to make some other preparation of meat. The only party presumably having knowledge of the fact has failed to disclose the situation. Such failure raises some inference that the full particulars would not be to his advantage. As the making of sausage fairly comes within the business of a retail meat dealer, the conclusion of the Commission that the case falls within the act is not against the evidence.

Section 21 of the act called upon the employer for more particular information than he gave. The position most favorable to the employer is that a part of his business might fall within the hazardous employment and a part not, and if he claimed the injury occurred outside of the hazardous employment it rested with him to show the facts. In Matter of McQueeney v. Sutphen & Myer (167 App. Div. 528), decided at this term of court, we have considered the application of this section. The award should be affirmed.

All concurred.

Award affirmed.  