223 A.D. 173 | N.Y. App. Div. | 1928
The State Industrial Board has found that on July 20, 1926, while the deceased employee was engaged in the regular course of his employment at his employer’s place of business in the city of New York, “ and during the course of the afternoon of said day, after having spent two hours at his desk in said building, he went to the roof of said building for the purpose of obtaining air and relaxation, the heat on said 20th day of July, 1926, being excessive and oppressive, and shortly after going to the roof, he fell from said roof to the street pavement below, a distance of four stories,” death resulting at once. The Board further found, however, that his injuries resulting in his death “ did not arise out of and in the course of his employment,” and denied an award, from which decision the claimant appeals. In the notice of decision the Industrial Commissioner states: “ Disallowed; accident did not arise in the course of employment and no prima facie case made out.” As we understand the decision, the finding was that there was no prima facie proof that the deceased remained in the course of his employment after he left his desk to go to the roof. There is proof that it was extremely hot and humid and had been for three or four days; that he had been working in a room thirty feet long by twenty feet wide in which he and thirteen other title readers and their stenographers were at work; that he had been complaining of the heat and had been mopping the perspiration from his face and pulling his clothing to keep it from sticking to his body; that he went to the office of the assistant advisory counsel of his employer a few minutes before the accident, whom he found in conference and who told'deceased he would see him in a few minutes; that the work of deceased was so strenuous and was carried on in such close confinement that seeking temporary relief from the excessive heat and humidity by going to the roof or some other part of the building might be considered a mere incident of the employment, especially since it was proven that it had been the practice and custom for years for these employees to do so. In view of these facts and on the authority of Matter of Norris v. N. Y. C. R. R. Co. (246 N. Y. 307) we think it may be presumed that the deceased continued in the course of his employment. A temporary cessation of work was justified by the nature of his employment and by custom. It may even have been his purpose to think out some problem connected with his work while he was on the roof. His fall was unwitnessed. There was no proof that it was occasioned by his
Van Kirk, P. J., Davis, Whitmyer and Hill, JJ., concur.
Decision reversed and claim remitted, with costs to the claimant against the employer and the insurance carrier to abide the event.
