Thе award is for death benefits to the widow and minor child of one Grieb, an employee . (Workmen’s Compensation Law [Cons. Laws, ch. 67], § 16). Thе employee was a cigar packer in the city of Syracuse. He was a piece worker, receiving $1.25 for paсking a thousand cigars. When not busy packing, his custom was. to deliver cigars to customers if so requested by his employer. He did this frequently during working hоurs. Sometimes he did it after working hours, and then his employer gave him car fares and the price of a drink.
On Saturday, September 30, 1916, Grieb left the *384 factory in the afternoоn about four o’clock. In the evening, he passed by with two friends, who had been fellow-employees. They, saw a light in the factory, аnd went upstairs. They found the employer tying up two boxes of cigars. He had called that evening at. the Amos Hotel, had been askеd by the proprietor to deliver some cigars, and had gone to the factory to get them. After some talk about other matters, the employer asked Grieb to deliver the boxes at the hotel, and to take the bill with him, presumably for collection. Grieb consented, and received the boxes and the bill. He left his employer and his two friends in the factory. On his way downstairs, he fell, and was killed.
The аrgument is made that the injury did not arise out of or in the. course of the servant’s employment. I think that is too narrow a view. If Grieb had been injured during working hours, it would make no difference that his service was gratuitous. If the service was incidental to the employer’s business and was rendered at the employer’s request, it would be part of the employment within the meaning of this statute. Any other ruling would discourage helрful loyalty
(Hartz
v.
Hartford Faience Co.,
It is plain, therefore, that Grieb’s service, if it had been rendered during working hours, would hаve been incidental to his employment. To overturn this award, it is necessary to hold that the service ceased to be incidental because rendered after hours. That will never do. The law does not insist that an employee shall work with his eye upon the clock. Services rendered in a spirit of helpful loyalty, after closing time has come, have the same protection аs the services of the drone or the laggard
(Larke
v.
John Hancock M. L. Ins. Co.,
I do not think our law commits us to so harsh a holding. A service does not cease to be part of an emрloyment because it is occasional or trivial. The Master of the Rolls said in McDonald v. Owners of Steamship Banana (1908, 2 K. B. 926, 929): “ If I send my domestic servant in the evening with a letter to а friend, and he is knocked down by a motor omnibus on his way to or from my friend’s house,” there will be liability under the English statute. The statement, when made, wаs a dictum, but a recent case in the House of Lords (Dennis v. White & Co., 1917 A. C. 479), reviewing all the precedents, and sweeping aside many fine-spun distinctions, mаkes it clear that the dictum was sound and just. (See also Hughes v. Bett, 1915 S. C. 150, cited in Dennis v. White & Co., supra, at p. 484.) We should interpret and apply our own statute in the same large sрirit. I cannot doubt that if it is thus read, the claimant’s case will be found within it.
To reach this conclusion, there is no need to attempt a рrecise or comprehensive definition of the term employment. One must leave such problems to be worked *387 out by the prоcess of exclusion and inclusion in particular cases, rather than by “ a fixed standard of measurement ” (Stewart & Son v. Longhurst, 1917 A. C. 249, 258). It is enough that here the employee was in the general service of the employer; that the service rendered was incidental to the business; that it was one which this employee had been accustomed to render upon request; and that the errand was the cause of his presence on the stairway. Thе inference is legitimate that it was not the comradeship of friends, but the tacit sanctions of a relation of power and dependence, which prompted the master’s request and the servant’s acquiescence.
The order should be affirmed with costs.
Hiscock, Ch. J., Cuddeback, Pound, Crane and Andrews, JJ., concur; Collin, J., not voting.
Order affirmed.