Matter Claim Rose Berkman v. Billig Manufacturing Co‪.‬

Two alleged employers and their respective carriers appeal from an award of death benefits. The award was apportioned one
fifth against appellant Danshades and four fifths against appellant Billig upon the theory that the decedent was a joint employee
of both, and the apportionment was made on the basis of remuneration paid to decedent for his services by each employer. Claimant
was an outside salesman engaged in selling different types of lamps and lamp shades for each employer. He was killed in an
automobile accident under circumstances which justify a finding that his death occurred in the course of his employment. Both
appellants contend that decedent was an independent contractor and not an employee. We deem it unnecessary to recite the detailed
method of operation showing the relationship between the appellants and the decedent. Suffice it to say that there are present
in the record some of the usual indicia of an independent contractor; some of the usual indicia of an employer and employee
relationship, and many circumstances which would be equally consistent with the relationship of independent contractor and
the relationship of employer and employee. Under such circumstances the relationship becomes a question of fact, and this
court may not say as a matter of law that the relationship was that of independent contractor. (Matter of Gordon v. New York
Life Ins. Co., 300 N. Y. 652; Matter of Klein v. Sunrise Bldg. Co., 7 A.D.2d 805.) Although decedent must be considered a
joint employee of two employers the board was not bound to apportion the award equally between them. Apportionment is a factual
determination to be made by the board upon a fair and equitable basis under all the circumstances presented. (Matter of Hunt
v. Regent Devel. Corp., 3 N.Y.2d 133.) Award unanimously affirmed, with one bill of costs to the Workmen's Compensation Board
against appellants. Present - Foster, P.J., Bergan, Coon, Herlihy and Reynolds, JJ.