Ceo v. City of Rochester

• Decision Date: 29 December 1944
• Citation: 268 A.D. 601,52 N.Y.S.2d 98
• Parties: In the Matter of the Claim of FRANK CEO, Appellant, v. CITY OF ROCHESTER, Respondent.
• Court: New York Supreme Court

268 A.D. 601

52 N.Y.S.2d 98

In the Matter of the Claim of FRANK CEO, Appellant, v. CITY OF ROCHESTER, Respondent.

Supreme Court of New York, Third Department.

December 29, 1944

APPEAL from a decision of the State Industrial Board made under the Workmen's Compensation Law, filed September 19, 1941 disallowing a claim for disability compensation filed by appellant.

COUNSEL

Christopher H. D'Amanda, attorney for appellant.

Charles B. Forsyth, Corporation Counsel, for respondent City of Rochester.

Nathaniel L. Goldstein, Attorney-General, for the State Industrial Board.

Per Curiam.

The claimant appeals from a decision of the Industrial Board disallowing his claim for compensation against the City of Rochester. He states, in substance, and is corroborated, that on the evening of January 30, 1939, a request from city authorities came over the radio for men who were willing to aid in shoveling snow and clearing the streets to report at the Central Avenue Firehouse. He and his son-in-law went, and after they had stood for a considerable time in front of the building, a man came from the interior, and as the crowd pushed toward the door he said: 'Wait, I am going to pick out a few men'. He selected fifteen or twenty, including claimant, to whom he said: 'Come on in and get your shovels.' Claimant and the others, on invitation followed upstairs, and there claimant fell through a hole in the floor which had formerly been used by firemen to slide to the first floor. He received serious injuries and was incapacitated for a long period.

There were three witnesses on behalf of the City. Two of them knew nothing about the transaction, but testified as to the custom usually followed when snow shovelers were hired; the third Volk, was a 'clerk in the chief clerk's office, Department of Public Works.' By hearsay he knew of the broadcast for laborers. He described the storm: 'Q. Do you remember January 30, 1939? A. I will never forget it. Q. What kind of a day was it? A. Cloudy day, about eight o'clock in the morning the snow storm started, one of the worst snow storms, and I have been with the city nine years. Q. As a matter of fact it is one of the worst snow storms you ever saw? A. It was.' As to the happening of the accident: 'Q. Had you heard that a man had been hurt that day? A. I heard someone had gotten hurt.' The other two witnesses who had no recollection of the storm deny that there was a call by...