
    Before State Workmen’s Compensation Commission, Respondent. In the Matter of the Claim of Albert Gleisner, Claimant, Respondent, for Compensation to Himself under the Workmen’s Compensation Law, v. Gross & Herbener, Employer, and Commercial Casualty Insurance Company, Insurance Carrier, Appellants.
    Third Department,
    November 10, 1915.
    Workmen’s Compensation Law —injury to janitor by fall from ladder — employment not hazardous — statute construed — occasional work may be hazardous — appeal — examination of evidence.
    A janitor employed by a company operating apartment buildings and who was also placed in charge of repairs to the buildings so far as he was personally able to make them, who slipped and fell from a ladder while ascending to a roof to do work upon a flag pole, was not, at the time, engaged in a “ hazardous employment ” within the meaning of the Workmen’s Compensation Law and is not entitled to compensation for the injuries received.
    The Appellate Division has power to examine the evidence adduced before the Compensation Commission as supplementing, illumining and explaining, though not as varying or contradicting, the findings of fact made by the Commission.
    
      It seems-, that the statute should be construed as follows:
    
      Hirst. If an employee’s duties are exclusively or predominately within an enumerated employment and he is injured while doing work fairly within the scope of the ordinary and customary fulfillment of such duties, he has a rightful claim even though the particular act he was doing when the mishap befell him would not, of and by itself, ordinarily come within the wording of the statute.
    
      Second. But where an employee’s duties do not come exclusively or predominately within the category of enumerated employments, and only incidentally does he do work fairly falling within that category, his right to remuneration must hinge on a finding that he sustained injury while actually and momentarily doing work named in the statute.
    Appeal by Gross & Herbener and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 23d day of February, 1915.
    
      Otto D. Parker and Henry Siegrist, for the appellants.
    
      
      Egburt E. Woodbury, Attorney-General [E. C. Aiken, Deputy Attorney-General, of counsel], for the respondent.
    
      Jeremiah F. Connor, counsel for the Workmen’s Compensation Commission.
   Woodward, J.:

The award made by the State Workmen’s Compensation Commission in favor of Albert Gleisner must be set aside as unsustained by the findings or the evidence.

The claimant met with accident in the course of his daily work for Gross & Herbener, the employer. This firm was in the real estate business, and owned or operated various apartment buildings in the borough of Manhattan, city of Hew York. One of these was Ho. 558 West One Hundred and Fifty-eighth street, in which the claimant sustained the incapacitating mishap for which the Commission awarded him indemnity. Admittedly Gleisner’s injuries were accidental; undeniably they arose out of and in the course of his employment and were sustained while doing work which was within the course of his duties and the scope of his employment. The sole question here at issue is whether, at the time the claimant met with mishap, he was doing work and “engaged” in an “employment ” which the Legislature has designated as “ hazardous ” and so has brought himself within the purview of the new system of compensation for industrial accidents created by the Workmen’s Compensation Law (Consol. Laws, cha,p. 67 [Laws of 1913, chap. 816; Laws of 1914, chap. 41], as amd.).

The Compensation Commission found, as a matter of fact, that the claimant “was employed as a janitor by Gross & Herbener,” and that “ while in the said employ, he had general charge of the repairs of the building and was engaged. to make such repairs as far as he could himself.” The finding of fact as to the circumstances of the accident was that “on said date Albert Gleisner was going up on the roof to perform some work on the flag-pole on top of the building; he slipped and fell from the ladder, a distance of seven or eight feet, and fractured his left femur, by reason of which injuries he was incapacitated from the date of the accident for a period of twenty-nine weeks.”

These findings of fact do not, however, sustain or warrant the conclusion that the claimant met with accidental injury in the course of an “employment” which the Legislature has defined as “hazardous,” as a result of the exhaustive and scientific investigations which preceded the enactment of the Workmen’s Compensation Law. On their face, when read in connection with the statutory definitions, these findings altogether overcome any statutory presumption of the applicability of the system to a claim made under it, and leave the Commission’s legal conclusion unsustained. The Legislature has not yet found or defined the work of a “janitor,” as such, to be a “hazardous” employment; a finding that Gleisner slipped and fell while “ going up on the roof to perform some work on the flag-pole,” does not sustain the conclusion that this janitor was engaged in one of the employments enumerated in section 2 of the statute. The State Industrial Commission will do well, in the formulation of findings upon which are based its conclusions approving or rejecting a claim, to state, in somewhat greater detail than was done in this instance, the facts which lead it to a determination that an accident under consideration was sustained in the course of an “employment ” whose occupational mishaps the Legislature has made a trade risk and a charge against the cost of the industry’s product.

It is, of course, true, as contended in behalf of the claimant, that this court has the unassailable right to examine and to take into account the evidence adduced before the Commission, as supplementing, illumining and explaining, though not as varying or contradicting, the findings of fact made by the Commission. (Matter of Rheinwald v. Builders’ Brick & Supply Co., 168 App. Div. 425.) It is likewise true that the record as to the claim at bar contains indications that the injured “ janitor ” at times did work of a kind enumerated in section 2 as constituting employments within the scope of the compensation plan. He made certain repairs to plumbing and did painting and carpenter work of at least a minor kind; he covered pipes with asbestos; and during the winter months he operated the boiler of the steam-heating plant. This boiler and plant were not, however, in operation during September when Gleisner was injured. The Commission found that Gleisner “had general charge of the repairs of the building and was engaged to make such repairs as far as he could himself,” though it must be said that the evidence seemed fairly to indicate that most or all the repair work done by Gleisner was done for tenants rather than for Gross & Herbener. The contention in behalf of claimant is accordingly that the claimant’s “employment” was included within group 42 of section 2 of the act, which includes “ structural carpentry; painting, * * *; construction, repair and demolition of buildings * * *; plumbing, sanitary or heating engineering; * * * covering of pipes or boilers.”

Passing by the question, not argued or passed upon on this appeal, whether the casual and incidental work of a “ janitor ” along lines which perhaps at times include some “ painting,” “structural carpentry,” “construction, repair and demolition of buildings,” “ covering of pipes or boilers,” and the like, can be deemed to rank that janitor as “ engaged ” in an “ employment ” enumerated in group 42 of section 2, we are confronted by the fact that Gleisner’s own notices of injury and claims for compensation state that at the time he was injured he was going to the roof upon a ladder for the purpose of hanging up a flag. Although the putting out of a flag on the roof of his employer’s building was doubtless an incidental part of his duties as janitor, it cannot in law or common sense be deemed an actual or incidental part of any of the kinds of work enumerated in group 42 of section 2 of the act.

That Gleisner’s employer, the tenants, or Gleisner himself, regarded his position and employment as that of “ janitor,” a non-enumerated employment, is of course not decisive of his right or lack of right to compensation for occupational injury. Regardless of the contractual or colloquial designation of the duties or position of an injured employee, the question remains in every instance as to the work which he was in fact doing and the extent to which his work came within the category of the enumerated employments. The actuality, rather than the appellation, is the sound basis for the Commission’s action in determining whether an employee met with mishap in the course of an enumerated employment. If, within the scope of his duties, he was injured while actually and umistakably doing, at the moment, work of a kind specifically defined in the statute as “hazardous,” his right is clear; under other circumstances his right must depend on proof of facts regarding which the present findings and the present record are alike inadequate basis for affirming an award.

The applicability of the enumerations or definitions of “ employments ” deemed entitled to the protection of the statute is of course not to be determined narrowly and constrainedly, hut rather in the reasonable and common sense manner essential to the vitality of the operation of the statute. If an employee is hired for work falling exclusively or predominantly within one or more of the enumerated occupations, his right to compensation for injury in the course of his employment cannot fairly he made to hinge on a finding that he was, at the moment of injury, engaged in an act clearly constituting the direct doing of work named in the act. The painter’s right to compensation for injury sustained at his daily trade does not depend on a showing that he was at the moment applying a brush, mixing paints, or mounting a scaffold. If an employee’s duties are exclusively or predominantly within an enumerated employment or employments, and he is injured while doing work fairly within the scope of the ordinary and accustomed fulfillment of such duties, he has a rightful claim, even though the particular act he was doing when mishap befell him would not, of and by itself, ordinarily be described by the use of phraseology contained in the statute or as the doing of work enumerated in the statute. To hold otherwise would defeat the fair purpose of the law, and make its operation hinge and its benefits depend on harsh, arbitrary and unworkable distinctions which would inevitably paralyze its practical workings. Where, however, as apparently here, the employee’s ordinary duties and accustomed scope of activities do not come exclusively or predominantly within the category of enumerated employments, and only casually and incidentally does he do work fairly falling within that category, his right to remuneration must hinge on a finding that he sustained injury while actually and momentarily doing work named in the statute. If the employer shows that the employee was not so engaged when he met with injury, he is not entitled to reimbursement under the statute. even though he at times did work embraced, within the statute. (Matter of McQueeney v. Sutphen & Myer, 167 App. Div. 528; Matter of Kohler v. Frohmann, Id. 533; Matter of Smith v. Price, 168 id. 421; Matter of Parsons v. Delaware & Hudson Co., 167 id. 536.)

Applying the foregoing to the claim at bar, it is clear that additional evidence must be adduced and more comprehensive findings made before a janitor, who casually and incidentally did plumbing, repair and heating work, may receive compensation under the statute for injuries received while ascending a ladder to the roof for the purpose of hanging a flag.

The award is set aside.

All concurred.

Award reversed and claim dismissed.  