Opinion
November 16, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from determination of Workmen's Compensation Board which established the relationship of employee and employer. The claimant, 66 years of age, was furnished a cart, together with ice cream, dry ice and other supplies by the appellant, who was engaged in distributing and selling ice cream products in the City of New York. The arrangement was that the claimant would work at his pleasure and would not be limited to any route or selling in any defined section of the city. At the end of the day he would return the cart and the unsold ice cream and would pay the employer 50% of the receipts. While selling ice cream on August 25, 1959, he was injured when struck by an automobile truck owned by a third party. The board found that the claimant was an employee of the employer herein, which relationship is questioned on this appeal. We have previously determined that where the employer furnished equipment in furtherance of its business and exercised some supervision and control and shared in the profits, the question of the relationship is factual and the determination by the board is final. ( Matter of Florio v. Assael, 274 App. Div. 1082; Matter of Klein v. Sunrise Bldg. Co., 7 A.D.2d 805, motion for leave to appeal denied 5 N.Y.2d 711; Matter of Grigoli v. Nito, 11 A.D.2d 581.) Decision of the Workmen's Compensation Board unanimously affirmed, with costs.