264 A.D. 802 | N.Y. App. Div. | 1942
Appeal from a decision of the State Industrial
Board holding that claimant sustained an accidental injury arising out of and in the course of his employment. No award of compensation was made because the period of disability was less than seven days. The decision is appealable because it comes within the purview of section 23 of the Workmen’s Compensation Law, and because it might establish a basis for recovery of medical expenses. The decision itself, however, is erroneous as a matter of law on the undisputed facts. Claimant was a traveling salesman. When the accident happened he was eating a meal at a public restaurant. During the course of the meal a chicken bone became lodged in his throat, and medical treatment was required for his relief. At the time of the accident he was not engaged in the course of his employment. (Matter of Johnson v. Smith, 263 N. Y. 10; Matter of Goldman v. John Hancock Mutual Life Insurance Co., 276 id. 582.) Decision reversed and claim dismissed, with costs to the appellant against the State Industrial Board. Hill, P. J., Crapser, Bliss, Sehenck and Foster, JJ., concur.
