Macaluso v. Alexander, Shumway & Utz Co.

• Decision Date: 12 July 1960
• Citation: Macaluso v. Alexander, Shumway & Utz Co., 203 N.Y.S.2d 106, 11 A.D.2d 838 (N.Y. App. Div. 1960)
• Parties: Claim of Louis MACALUSO, Respondent, v. ALEXANDER, SHUMWAY AND UTZ CO. and The State Insurance Fund, Appellants. Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 106

203 N.Y.S.2d 106

11 A.D.2d 838

Claim of Louis MACALUSO, Respondent, v.ALEXANDER, SHUMWAY AND UTZ CO. and The State Insurance FundAppellants. Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

July 12, 1960.

Charles G. Tierney, New York City, for appellants.

William J. Flynn, Mt. Morris, for claimant-respondent.

Louis J. Lefkowitz, Atty. Gen., for Workmen's Compensation Board(Daniel Polansky, New York City, of counsel).

Before BERGAN, P. J., and COON, GIBSON, HERLIHY and REYNORLDS, JJ.

MEMORANDUM DECISION.

Appeal by an employer and its insurance carrier from a decision and award of the Workmen's Compensation Board, apopellants contending that the accident which occurred while claimant was changing a tire on his own automobile while on his way to work and some miles away from the job location where he was employed as a carpenter, did not arise in the course of the employment.The board's decision to the contrary was predicated upon the findings that, in addition to regular wages, claimant was paid $1 per day for transportation to his place of work (some 35-40 miles distant) and that such payment 'was an inducement to obtain the necessary help.'It is abundantly clear from direct testimony and inference alike that it was necessary but difficult for the employer to get workmen from a distance; that there was no public transportation available from Mt. Morris where claimant lived; that about 18 months before the accident two other residents of Mt. Morris informed claimant that their 'boss had told them to hire a man who owned a car so that they could get to work, too, and [the...