Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.
This is a workmen's compensation case. The Deputy Director decided that the injury did not arise out of and in the course of employment, and dismissed the petition. The County Court reversed, and awarded compensation. The employer, Ambassador Court, Inc., appeals.
Petitioner was the superintendent of the employer's apartment building which contained 58 apartments and two stores. It is not denied that his duties included painting, plumbing, tile work, electrical repairs, removing wallpaper, tending the boilers and two incinerators, cleaning the stairways, hallways and basement, putting out the garbage, cleaning the sidewalk, and collecting rents.
Hayes testified without contradiction that he was required to wash the windows in vacant apartments, and that "all minor repairs" were his responsibility. He also testified that he was instructed to wash the windows in occupied furnished apartments, but this the employer denied.
Petitioner sustained his injuries when he fell while attempting to pry open a window in one of the apartments which had become stuck with paint. He testified that the tenant, who had moved into the apartment a few weeks before, had asked him to wash the windows. The apartment was a furnished one (there were only three or four in the building), for which the tenant paid a good deal more rent than was paid for the unfurnished, and therefore when she said "she figured she was entitled to service," he agreed and undertook to do it.
Hayes said no arrangement was made with the tenant for compensation. Although he acknowledged that he had anticipated a tip, he said that was because "they all gave me tips, regardless of what I done, whether it was in the line of duty or not, they gave me a tip." He admitted also that the tenant had given him a tip when he moved some furniture for her, but, on the other hand, he said that when he washed windows for a tenant of an unfurnished apartment
he agreed on a price beforehand, which he did not do here because he "figured that she was renting a furnished room and she was entitled to service." The occupants of the other furnished apartments never asked him to do their windows, he said, during the five months that he was superintendent.
After washing three of the windows petitioner discovered that the fourth was stuck, apparently because of exterior painting. He then undertook to pry open the window with a screwdriver and fell when the window abruptly came free.
The tenant was not produced as a witness. Mr. Coggan, appellant's president, not only denied that he had instructed Hayes to wash windows in occupied furnished apartments but he went further and said on direct examination:
"Q. Did you have any conversations with Mr. Hayes as regards doing work for tenants? A. Yes, sir.
Q. What was that? A. He wasn't supposed to do nothing for tenants."
The appellant contended before the Deputy and in the County Court that the petitioner's injuries did not arise out of and in the course of his duties because (1) he had been expressly instructed "to do nothing for tenants," and (2) even if such a prohibition was not proved, washing the windows was a venture undertaken by Hayes on his own for his personal and exclusive benefit and private reward. Petitioner denied these contentions and, in addition, argued that they had no relevancy to the case at ...