| N.Y. App. Div. | Sep 18, 1940
The employer and carrier appeal from an award of death benefits. Decedent, a resident of Auburn, was employed as timekeeper and clerk by a contractor on work in the town of Wyoming, Wyoming county, N. Y. On Friday he received the pay envelopes of all the employees and distributed all except one belonging to Jones, the night watchman. On Friday afternoon at about four-thirty o’clock, as was Ms custom, he drove his automobile to-his home in Auburn intending to leturn on the following Monday morning. He paid his own expenses on these trips. Bn route to his home he stopped at Jones’ residence on the outskirts of Wyoming but did not deliver the envelope as Jones was absent. He intended to stop there again upon the return trip Monday. He received the injuries from wMch he died at Canandaigua on the return trip. The car he was driving collided with another car. Canandaigua is approximately forty miles from Wyoming. The award was improperly made. (Matter of Marks v. Gray, 251 N.Y. 90" date_filed="1929-05-28" court="NY" case_name="Claim of Dependents of Marks v. Gray">251 N. Y. 90; Matter of Carroll v. Verway Printing Co., 254 id. 598; Matter of Torres v. Criterion Concessions, Inc., 259 A.D. 770" date_filed="1940-03-13" court="N.Y. App. Div." case_name="Claim of Torres v. Criterion Concessions, Inc.">259 App. Div. 770.) Translating the negative doctrine announced in Matter of Schwimmer v. Kammerman & Kaminsky (262 N.Y. 104" date_filed="1933-05-23" court="NY" case_name="Matter of Schwimmer v. Kammerman Kaminsky">262 N. Y. 104) into an affirmative one, claimant was engaged in his private business and pleasure after he left the Jones residence on Friday and would have been so engaged until he returned to that point on his way back to work. Award reversed and claim dismissed. Hill, P. J., Crapser, Bliss, Schenck and Foster, JJ., concur.