Opinion
March 11, 1942.
Appeal from State Industrial Board.
The claimant's intestate was regularly elected to the office of town highway superintendent of the town of Collins, Erie county, N Y, at the November, 1937, general election. On March 18, 1938, he was out on the town highway with a light truck. He stopped to visit some friends at a farm and when he returned to the truck and started up it became mired in the highway. He shoveled it out and got it going. While he was engaged in this work, with help, he sank to the ground, lost consciousness and died. He had an incurable heart condition which had existed for at least five years and died of heart failure. The evidence did not show an accident in the form of severe and unusual strain, nor was there any showing of accident in the nature of catastrophic or extraordinary occurrence, and the evidence sustains the finding of the State Industrial Board. The cross-appeal of the employer and insurance carrier as alleged in the reply brief should be dismissed. Decision affirmed, with costs to the State Industrial Board, on the authority of Matter of Dworak v. Greenbaum Co. ( 287 N.Y. 555); Matter of LaFountain v. LaFountain (284 id. 729). Crapser, Bliss and Schenck, JJ., concur; Hill, P.J., and Foster, J., dissent, and vote to reverse the decision and remit the matter to the Industrial Board.