Nashko v. Standard Water Proofing Co.

• Decision Date: 03 April 1958
• Parties: , 149 N.E.2d 859 In the Matter of the Claim of Irene NASHKO, Appellant, v. STANDARD WATER PROOFING COMPANY et al., Respondents. Workmen's Compensation Board, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 565

173 N.Y.S.2d 565

4 N.Y.2d 199, 149 N.E.2d 859

In the Matter of the Claim of Irene NASHKO, Appellant, v. STANDARD WATER PROOFING COMPANY et al., Respondents Workmen's Compensation Board, Respondent.

Court of Appeals of New York.

April 3, 1958.

Abraham Markhoff and Janet E. Levinson, New York City, for appellant.

Morgan F. Bisselle and Warren C. Tucker, New Hartford, for Standard Water Proofing Company and another, respondents.

BURKE, Judge.

George Nashko died as a result of injuries sustained in New Jersey while in the course of his employment for an employer whose business was conducted from New York. An award in workmen's compensation was successfully challenged in the Appellate Division on the ground that the deceased's work at the time of his injury was confined to a fixed place in another State and that consequently the New York board was without jurisdiction. The question to be determined is whether the board's finding that the employment was located in New York was justified by the evidence.

There is no fixed, invariable touchstone by which the presence or absence of jurisdiction in cases like the present one may be determined. The Workmen's Compensation Law, Consol.Laws, c. 67, contains no explicit definition of its territorial scope and this court has not attempted to fix a single inflexible and conclusive standard for all cases (see Cameron v. Ellis Construction Co., 252 N.Y. 394, 398, 169 N.E. 622, 623). What has developed in an approach whereby certain factors tending to show substantial connection with this State are looked for in the factual patterns of each individual case. If sufficient significant contacts with this State appear so that it can reasonably be said that the employment is located here, then the Workmen's Compensation Board has jurisdiction. Cameron v. Ellis Construction Co., supra, 252 N.Y. at page 397, 169 N.E. at page 623; see, also, Cardillo v. Liberty Mut. Co., 330 U.S. 469, 476, 67 S.Ct. 801, 91 L.Ed. 1028. If on the other hand the circumstances and elements of the employment are such as to indicate that the employment is in fact located in another State then the claimant is not protected by our statute. But at all times the determination as to the employment's location is governed by the facts of the particular case.

That this is indeed the proper approach and that the fact of geographical mobility or immobility of the extraterritorial work out of which the accident arose is not the sole governing criterion is attested to by the fact that the very case which has been relied upon as establishing an arbitrary rule itself deprecates such an approach and calls for flexibility. Thus the opinion in the Cameron case cited by the majority below, after stating that the central test of jurisdiction is the place where the employment is located goes on to say that 'Determination of that question may at times depend upon the relative weight to be given under all the circumstances to opposing considerations. The facts in each case, rather than juristic concepts, will govern such determination.' Ellis v. Cameron Constr. Co., supra, 25i N.Y. at pages 397-398, 169 N.E. at page 624. Undeniably the prominent factual element in the Cameron case was the fact that the employment there was confined to 'work at a fixed place or places outside the state' but it is just as clear that this consideration was not intended to serve as the only measure of jurisdiction for all future cases. To quote again from the opinion in the Cameron case 'Such illustrations may indicate the manner in which the test should be applied; we do not now attempt a more definite classification intended to cover all the varying circumstances that may enter into the question in other cases.' See Roth v. A. C. Horn Co., 287 N.Y. 545, 38 N.E.2d 221.

In short when determining the presence or absence of jurisdiction the appropriate test requires a determination as to the location of the employment. The fact that work is performed outside the State in a relatively restricted geographical location is a significant consideration and under some circumstances may prove decisive (see, e. g., Cradduck v. Hallen Co., 304 N.Y. 240, 107 N.E.2d 61). Other circumstances, however, are important and should be considered. Among these factors which may go to make up a New York State employment are a hiring in New York, control of employment from an office located in New York, payment of out-of-State expenses by the employer and an understanding that the employee is to return to New York after out-of-State assignments (see Klein v. Stoller & Cook Co., 220 N.y. 670, 116 N.E. 1055; Hawco v. Neill Constructors, Inc., 275 App.Div. 878, 88 N.Y.S.2d 640, motion for leave to appeal denied 300 N.Y. 761, 89 N.E.2d 258; Vatouios v. Markakis, 273 App.Div. 832, 76 N.Y.S.2d 61, affirmed 298 N.Y. 733, 83 N.E.2d 143). The facts that the employee is a...