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Lesniewski v. W.B. Furze Corp.2/23/1998
pso facto become a contractor by letting out the masonry, plumbing, carpentry and electrical work to different people by separate contracts. Ibid. (citing Mittan v. O'Rourke, 115 N.J.L. 177 (Sup. Ct. 1935)). In Mittan, supra, the court addressed the issue of whether the owner of property was a contractor and noted:
Wilson was not in the business of building houses, but had contracted with the several mechanics to have a completed house erected; the work being given out in the several parts that go to make a completed structure. Each of the mechanics having the contract with Wilson, one for electrical work, another for carpenter work...Now if Wilson had made one contract for the construction of the building he could not be called a "contractor" and the fact that the work was split up into parts does not alter the situation.
[115 N.J.L. at 179.]
Furze insists that the work done from January 1995 until April 1995 was an integral part of the regular business of EJ's because one of the corporate goals of EJ's was to construct the restaurant. EJ's responds that the point of its business was not to construct buildings but rather to open and operate a restaurant. The record clearly reflects that EJ's, as an owner of property, had the building constructed for its own purposes. On the record presented, we are not persuaded that EJ's was a contractor. Nor does resolution of that issue in favor of Furze require reversal, as we find sufficient support in the record for the Judge's conclusion that in any event Furze Corp. was an independent contractor from January 1995 through April 1995.
Furze contends, nonetheless, that Lesniewski became an employee of EJ's, beginning in January 1995. The "control test" and the "relative nature of work test" must be applied to determine who petitioner's employer was. Furze points to the change in the method of payment to substantiate that petitioner was an employee of EJ's. In April 1995, petitioner was given four pay checks drawn on EJ's account. Additionally, because Lord and O'Neill told Furze to "get some help" when it was time to perform masonry work on the floors, Furze argues that they were authorizing Furze to hire petitioner on their behalf.
The Judge weighed these factors, but considered several other factors that weighed against Furze's arguments, as being more persuasive. We again note that even though petitioner received four paychecks drawn on EJ's account, this is only one factor that is to be considered. As pointed out in Santos v. Standard Havens, Inc., 225 N.J. Super. 16 (App. Div. 1988), the name of the payor on the paycheck may have little probative value in determining the nature of the employment relationship. Id. at 24.
In this case, the factual disputes surrounding the method of payment illustrate how this factor has little probative value. In January 1995, when Furze and petitioner were allegedly employees of EJ
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