11 N.E.2d 348 | NY | 1937
Joseph and Catherine Burns, husband and wife, were employed as janitors of a tenement house, which contained no central heating system. They received as compensation a small monthly wage and the use of an apartment in the building. Both died as the result of burns suffered in a fire which occurred on January 1, 1935, when an oil heater, which they were using to keep their apartment warm, was accidentally overturned. At the time of the fire all the tenants had vacated the building, and the decedents were remaining on the premises in order to watch the building and to perform general duties of supervision until the building was closed and padlocked in preparation for demolition.
The Industrial Board granted awards, but the Appellate Division, two justices dissenting, has reversed and dismissed the claims on the ground that there was no evidence to support the finding that the accident arose out of the employment.
Death or injuries resulting from fire have been held to arise out of and in the course of the employment when the employee is on twenty-four hour duty, even though the employee was asleep or not actively engaged in his work at the time of the fire. (Matter of Giliotti v. Hoffman Catering Co.,
The duties of the decedents required their presence on the premises which contained no heating system on the day of the fire in January. Necessarily, in mid-winter, they had to provide some method of keeping warm. The conditions of the employment created the necessity for using the oil stove. Heating was a necessary concomitant of the employment in order that the decedents might perform their duties. It did not involve a purely personal act which might have been performed by the decedents wherever they lived. (Matter of Zilokowski v. American Radiator Co.,
Our conclusion does not conflict with the cases of Matter ofPisko v. Mintz (supra), which involved the death of a janitor as the result of a fire caused by his own cigarette, andMatter of Commissioner of Taxation Finance v. Fure
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The order of the Appellate Division should be reversed, and the awards of the Industrial Board reinstated, with costs in this court and in the Appellate Division.
CRANE, Ch. J., LEHMAN, O'BRIEN, HUBBS, LOUGHRAN and RIPPEY, JJ., concur.
Orders reversed, etc. *53