Koch v. Horseshoe Stables

• Decision Date: 08 July 1965
• Citation: 261 N.Y.S.2d 123,24 A.D.2d 668
• Parties: Claim of George KOCH, Respondent, v. HORSESHOE STABLES et al., Appellants, and Park Shore County Day Camp et al., Respondents, Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 123

261 N.Y.S.2d 123

24 A.D.2d 668

Claim of George KOCH, Respondent, v. HORSESHOE STABLES et al., Appellants, and Park Shore County Day Camp et al., Respondents, Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

July 8, 1965.

Seymour Howard, New York City, for claimant-respondent.

Joseph M. Soviero, New York City, for appellants (Bernard F. Farley, New York City, of counsel).

Edward Halstead Weeks, Mineola, for respondent Hartford Accident & Indemnity Co. (Alan R. Corn, Mineola, of counsel).

Louis J. Lefkowitz, Atty. Gen., Albany, for respondent Workmen's Compensation Bd.

Before GIBSON, P. J., and REYNOLDS, HERLIHY, TAYLOR and AULISI, JJ.

REYNOLDS, Justice.

Appeal by one of the employers and its carrier from a decision of the Workmen's Compensation Board dividing the award equally.

The sole question is the apportionment of the award. Claimant was hired both to instruct campers in riding for respondent Park Shore County Day Camp and at the same time take care of appellant's horses which were rented to the Day Camp. For these services he was paid $75 a week by appellant who carried him as his employee. The record, however, unquestionably reveals that of this amount $60 a week was contributed towards claimant's salary by the Day Camp and the remaining $15 by appellant, and the board itself has expressly so found. Under these circumstances the award should have been apportioned to reflect this ratio in accordance with the rule enunciated in Matter of Hunt v. Regent Devel. Corp., 3 N.Y.2d 133, at 134-135, 164 N.Y.S.2d 694, at 696, 143 N.E.2d 892, at 894). There the Court of Appeals stated:

'In cases where one employer pays higher wages than the other, to require them both to share equally in the award would always require the lower-paying employer to bear a portion of the other's compensation burden, and might on occasion result in one employer's paying the claimant an amount of compensation out of all proportion to the wage which he had paid, indeed, a larger amount than the wage itself. It is both fair and logical, therefore, that both employers be liable for compensation to the claimant in proportion to the remuneration paid by each, and such, we note, has been the rule, not only in this state (see [Matter of] Stevens v. Hull Grummond & Co., supra, 274 N.Y. 227, 8 N.E.2d 498), but in the other jurisdictions which have had occasion to pass on the matter. See Butler v. Industrial Comm. of Arizona, 50 Ariz. 516, 525, 73 P.2d 703; Press Publishing Co. v. Industrial Accident Comm., 190 Cal 114, 116, 210 P. 820; Wing v. Clark Equipment Co., 286 Mich. 343, 349-350, 282 N.W. 170; Schaefer & Co....