Marks' Dependents v. Gray

CourtNew York Court of Appeals
Writing for the CourtCARDOZO
Citation251 N.Y. 90,167 N.E. 181
Decision Date28 May 1929

251 N.Y. 90
167 N.E. 181

GRAY et al.

Court of Appeals of New York.

May 28, 1929.

Proceeding under the Workmen's Compensation Law by the dependents of Isadore Marks, deceased, opposed by Walter Gray, employer, and the Maryland Casualty Company, insurer. From an order affirming an award of the State Industrial Board (225 App. Div. 714, 231 N. Y. S. 812), the employer and insurer appeal by permission.

Order of the Appellate Division reversed, and award annulled.

Pound and Hubbs, JJ., dissenting.

[167 N.E. 182]

[251 N.Y. 90]Appeal from Supreme Court, Appellate Division.
Third department.
[251 N.Y. 91]Leo Waxman, of Elmira, for appellants.

Hamilton Ward, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.


Award has been made under the Workmen's Compensation Law (Const. Laws, c. 67) to the dependents of Isadore Marks for benefits found to be due by reason of his death. Whether the injury was one ‘arising out of and in the course of the employment’ (Workmen's Compensation Law, § 2, subd. 7; § 10) is the question to be answered.

Marks was a helper in the service of a plumber. His home and his place of business were at Clifton Springs, N. Y. On April 16, 1927, his wife went to visit relatives at Shortsville, where her husband promised to call for her in the family car at the end of the day's work. The employer, hearing that he was to make this journey, [251 N.Y. 92]asked him to take his tools and fix some faucets that were out of order at a dwelling house in Shortsville. The job was a trifling one, calling for fifteen or twenty minutes of work. There would have been no profit in doing it at the cost of a special trip. It would have been postponed till some other time when it could have been combined with other work, if Marks had not stated that he would make the trip anyhow. He did not use the employer's truck, the vehicle set apart for travel in the course of business. He used his own or his father's car, set aside, it would seem, for the convenience of the family. Nothing was said by the employer about paying him for the job. The expectation was, however, that, for any work that he did, he would be paid at the usual rate for labor after working hours. On the way to Shortsville, when only about a mile from Clifton Springs, he was injured in a wreck and died.

We think the accident did not arise ‘out of and in the course of’ any service that Marks had been employed to render. He was not making the journey to Shortsville at the request of his employer or for the purpose of doing his employer's work. He was making it in fulfillment of a promise to call for his...

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