Opinion
Argued January 10, 1921
Decided March 1, 1921
D. Theodore Kelly and Howard B. Harte for appellants.
Charles D. Newton, Attorney-General ( E.C. Aiken of counsel), for respondent.
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 Company, Inc., 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 or treasurer or that his very substantial compensation was received by him in the capacity of employee. If indeed we were permitted to look to the evidence for the purpose of trying to find testimony sustaining an additional finding that his wages were thus received, we should find to the contrary that he received a salary of $2,500 a year as president and as manager.
Under these circumstances we think that the award must be reversed and the claim remitted to the industrial commission for a rehearing and further findings, with costs to abide event.
HOGAN, CARDOZO, POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Ordered accordingly.