Fredenburgh v. Benjamin

• Decision Date: 09 November 1956
• Citation: 156 N.Y.S.2d 428,2 A.D.2d 912
• Parties: Matter of the Claim of Walter FREDENBURGH, Respondent, v. George BENJAMIN and Great American Indemnity Company, Appellants. Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 428

156 N.Y.S.2d 428

2 A.D.2d 912

Matter of the Claim of Walter FREDENBURGH, Respondent, v. George BENJAMIN and Great American Indemnity Company Appellants. Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

Nov. 9, 1956.

Ainsworth & Sullivan, Albany (John E. Knauf, Albany, of counsel), for appellant Great American Indemnity Co.

Kooperman & Kooperman, Ellenville, for appellant Benjamin.

Harold Sussman, Liberty, for claimant-respondent.

Jacob K. Javits, Atty. Gen. (Roy Wiedersum, Gilbert M. Landy, Asst. Attys. Gen., of counsel), for respondent Workmen's Compensation Board.

Before FOSTER, P. J., and BERGAN, HALPERN, ZELLER and GIBSON, JJ.

MEMORANDUM DECISION.

Appeal from a decision and award of the Workmen's Compensation Board.

Appellants Benjamin and Great American Indemnity Company both contend that the accident involved in this appeal did not arise out of claimant's employment; and the carrier alone argues that its policy did not cover this accident. The policy at the time of accident covered the co-partnership of Benjamin Kolansky and George Benjamin. The claim was originally filed by claimant against Benjamin alone and the original finding of the Board was that the claimant was employed by Benjamin and that the policy covered him; but an amended decision held that the partnership was claimant's employer. There is enough evidence in the record to sustain the amended finding. The truck in which the accident occurred was owned by Benjamin; and claimant had been paid by Benjamin for work done with the truck immediately before the accident. Claimant had, however, worked for the partnership and although there was a dispute between the partners at about the time of the accident in which they may then have been regarding themselves as each doing business on his own account the partnership relation was resumed after the accident.

An affidavit of appellant Benjamin has been filed with the court on appeal in which it is stated that although at the time of the accident the truck was registered in his name it was 'used for the purposes of the joint venture existing between him and the said Benjamin Kolansky'. This differs from Benjamin's testimony before the Referee; but it tends to support the decision on appeal. Claimant testified that he did not know the exact details of the business and that Benjamin had told him that Kolansky and he were partners. Benjamin testified he had not told claimant...