Kolpien v. O'Donnell Lumber Co.

• Decision Date: 01 March 1921
• Citation: 130 N.E. 301,230 N.Y. 301
• Parties: KOLPIEN v. O'DONNELL LUMBER CO. et al.
• Court: New York Court of Appeals Court of Appeals

230 N.Y. 301

130 N.E. 301

KOLPIEN

v.O'DONNELL LUMBER CO. et al.

Court of Appeals of New York.

March 1, 1921.

Proceeding for compensation under the Workmen's Compensation Act by Frank L. Kolpien, the employee, opposed by the O'Donnell Lumber Company, the employer, and the Lumber Mutual Casualty Insurance Company of New York, the insurance carrier. From a unanimous order of the Appellate Division (191 App. Div. 764,182 N. Y. Supp. 155), affirming an award made by the State Industrial Commission, the employer and insurance carrier appeal by permission.

Award reversed, and claim remitted to the Industrial Commission for rehearing and further proceedings.

Appeal from Supreme Court, Appellate Division, Third Department.

D. Theodore Kelly, of New York City, for appellants.

Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent.

HISCOCK, C. J.

The findings in this case are to the effect that the claimant was president and treasurer of a corporation and held a majority of its capital stock; that he was president and treasurer, and also ‘employed’ as manager, in which latter capacity he performed manual labor, such as an ordinary employee might perform, and that it was while engaged in the performance of these duties that he was injured; that his ‘average weekly wage * * * was the sum of $46.16.’

Much that has been said in the case of Skouitchi v. Chic Cloak & Suit Co., Inc., 130 N. E. 299, decided herewith, is applicable to the present claim, and its repetition is unnecessary. The extent of the claimant's stockholdings, however, is much more important that in the Skouitchi Case, and there is no finding that he did not discharge any duties as president...