Opinion
Argued January 9, 1928
Decided February 14, 1928
Appeal from the Supreme Court, Appellate Division, Third Department.
Albert Ottinger, Attorney-General ( E.C. Aiken of counsel), for appellants.
Edward T. Wilber and David B. Sugarman for respondents.
The claimant contracted with the respondent to drive the latter's horses in four races at a county fair at the prevailing rate of fifteen dollars a race. In the first race in which the claimant drove for the respondent he received an accidental injury. In respect to the methods to be pursued in making the race and handling the horse to be driven the claimant was subjected to the orders of the respondent. He was directed by the respondent to drive the horse with the rein not too tightly drawn. He was directed to drive on the outer circumference of the track in order to avoid frightening the horse. These instructions and many others which might have been given, it was claimant's duty to honor under the penalty of a discharge for disobedience. Consequently the claimant was a servant and the respondent was his master. ( Hexamer v. Webb, 101 N.Y. 377; Matter of Beach v. Velzy, 238 N.Y. 100.) It is immaterial that the claimant was to receive a lump sum price for each race in which he drove. ( Matter of Fancher v. Boston Excelsior Co., 235 N.Y. 272.)
The order of the Appellate Division should be reversed, and the award of the State Industrial Board confirmed, with costs in the Appellate Division and in this court.
CARDOZO, Ch. J., POUND, CRANE, ANDREWS, LEHMAN, KELLOGG and O'BRIEN, JJ., concur.
Ordered accordingly.